Law & the Courts

Birthright Citizenship: A Nutty Policy We’re Probably Stuck With

(Pixabay)
On balance, the evidence suggests the Constitution requires it.

President Donald Trump has hinted that he plans to eliminate birthright citizenship — under which virtually all those born on U.S. soil are automatically granted U.S. citizenship, even if their parents are illegal immigrants — via executive order. This raises serious questions for conservatives.

Many of us think that in today’s world, birthright citizenship is an insane policy that undermines our sovereignty. Why reward people who come here illegally with citizenship for their kids? But conservatives also insist that the government stay within its constitutionally designated boundaries, so we have to ask whether the Constitution mandates birthright citizenship. If it does, we are stuck with it until we can pass an amendment.

In this rather long piece — you’ve been warned — I’m going to round up the historical evidence bearing on this issue. (If you want thoughts on the separate question of whether an executive order or legislation would be needed to change the law, assuming the Constitution allows it, read Andy McCarthy.) I personally believe that birthright citizenship is required, and I won’t hesitate to evaluate evidence instead of just reporting it. But I have done my best to include the key pieces of support for both views — drawing on extensive writings by (among others) Lino A. Graglia, John C. Eastman, Peter H. Schuck and Rogers M. Smith, Garrett Epps, Gerard N. Magliocca, and James Ho.

I’ll begin with the evidence most directly connected to the amendment: the text itself and the congressional debates over it. Then I’ll proceed to cover somewhat less on-point sources, including the Civil Rights Act of 1866 (which had much the same purpose as the 14th Amendment but used different language) and subsequent Supreme Court decisions (during a time when the Court notoriously butchered other aspects of the 14th Amendment).

 

The Text and Its Plain Meaning

The provision at issue here reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” “Born or naturalized in the United States” has an obvious enough meaning. The trouble comes from “subject to the jurisdiction.”

To modern ears, the natural reading is that one is “subject to the jurisdiction” of a government if that government exercises authority over him. The Illinois government has no jurisdiction over me as I write in Virginia; foreign diplomats are not subject to our jurisdiction even while they’re on our soil and can rack up parking tickets with impunity. The U.S. government clearly does have jurisdiction, in this straightforward sense, over illegal immigrants; otherwise we would be powerless to deport them or or otherwise punish them for breaking our laws.

This common sense of “jurisdiction” is also found in pre–14th Amendment historical texts, including dictionaries and legal documents. If you search Google Books for uses of the phrase “subject to the jurisdiction” in the three decades leading up to the amendment, for instance, you find that your query mainly turns up a handful of court documents debating whether individuals were “subject to the jurisdiction” of the courts in question. Unfortunately, though, there are few uses of the term in reference to a whole country, the way the amendment uses it. So we must be open to the idea that “subject to the jurisdiction” is used in a deeper and more artful way here.

Foreigners, Chinese and Otherwise

The main purpose of this provision, by all accounts, was to give citizenship to former slaves and their descendants, but its language is much broader, announcing a general framework through which citizenship would be granted. (This is a floor, not a ceiling: Through its naturalization power Congress may grant citizenship to people it’s not required to.) Unfortunately, illegal immigration was not an issue at the time, as immigration was unrestricted — unless you count slaves who’d been smuggled into the U.S. after Congress banned slave importation as “illegal immigrants” — so the drafters of the amendment never discussed it. But they did discuss whether various populations would be covered, and in so doing outlined a variety of principles that clearly they thought were inherent in the concept of being “subject to the jurisdiction” of the U.S.

Here is an incredibly important comment on the provision by Senator Jacob Howard (emphasis mine):

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

Unfortunately, the key sentence is cryptic. Is that a list of three different categories (foreigners, aliens, and people from the families of ambassadors and ministers), in which case all kids of foreigners and aliens would be excluded from birthright citizenship? Or is “aliens” used simply as a synonym for “foreigners” and meant to be read in apposition, in which case the exclusion is limited to the families of ambassadors and foreign ministers? (“Foreigners — that is, aliens — who belong to the families . . .”)

As an editor with twelve years of professional experience, I regret to inform you that we can’t resolve this based on grammar alone, despite numerous efforts to do so. One side claims it’s a list and you have to make too many adjustments to the text to read it otherwise (killing both commas and adding an “or”: “foreigners or aliens who . . .”), but that’s ignoring the possibility of reading “aliens” as an appositive, in which case you don’t have to change the text at all. The other points out that if it’s a list, it’s not properly constructed: The first two items are nouns, the third a relative clause. This is true, but I’ve seen lots of lists whose items don’t line up properly in my day — I fix them in my editing and angrily furrow my brow when I see them published elsewhere — so it’s entirely possible Howard did mean to convey a list and just slightly misspoke or was mistranscribed.

I think we can rule out this particularly broad reading, though, through other means. For one thing, if all foreigners and aliens were ineligible for birthright citizenship, it seems a little odd to then single out a tiny subcategory of them, those who belong to the families of ambassadors and ministers — though maybe this was just for emphasis.

More compelling is a subsequent discussion of Chinese immigrants in California (who were allowed to come but not allowed to naturalize) and Gypsies in Pennsylvania, a discussion set off by a racist diatribe by Senator Edgar Cowan, who asserted that states must be allowed to stop themselves from being overrun by dirty racial minorities and believed the 14th Amendment would strip them of this authority by granting citizenship to the children in those populations.

Senator John Conness agreed that the amendment would make the kids of Chinese immigrants citizens, but argued this was no problem, and simply waved aside concerns about Gypsies:

The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. . . .

I have lived in the United States for now many a year, and really I have heard more about Gypsies within the last two or three months than I have heard before in my life. It cannot be because they have increased so much of late. It cannot be because they have been felt to be particularly oppressive in this or that locality. It must be that the Gypsy element is to be added to our political agitation, so that hereafter the Negro alone shall not claim our entire attention.

This doesn’t resolve the question of illegal immigration, but it certainly suggests that the amendment’s protections weren’t denied to all immigrants. The two senators agreed on this; they differed only on whether it was a good thing. No one stepped up to say they were arguing based on false premises.

Native Americans and Invading Armies

Native Americans were another key population — and the 14th Amendment’s citizenship guarantee generally did not apply to them. The discussions regarding this point provide some of the key pieces of evidence for the anti-birthright-citizenship side of the debate, as some comments imply that to be “subject to the jurisdiction” of a country you must owe it “allegiance.”

In response to a suggestion that the amendment exclude “Indians not taxed” by name, as the 1866 Civil Rights Act had, Howard responded that this was not necessary: “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.”

After further discussion on the point of whether the amendment, as written, would apply to various Native American populations, Senator Lyman Trumbull said the following:

The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the United States”? Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get control of those people.

On the one hand, one may legitimately ask whether an illegal immigrant owes “allegiance” to the U.S. or his home country, and the word “complete” is pretty emphatic. On the other, though, one might ask the very same “allegiance” question of legal immigrants — who it seems clear are covered by the amendment — and it’s worth noting that illegal immigrants pass every item on the checklist provided. (They can be sued; we don’t make treaties with them; we can pass laws to control their behavior.)

Meanwhile, invading armies were another category that was clearly excluded, and Magliocca — a legal scholar who believes birthright citizenship is required — posits that this may be the best analogy to illegal immigrants, because both are here without our permission. He then provides his own counterarguments, however; for instance, illegal immigrants are not “beyond the government’s control” in anything like the same way a hostile foreign army is. So that’s a bit of a stretch, too.

The Civil Rights Act of 1866

This law came a little before the 14th Amendment, and it accomplished pretty much the same thing, though its language differed. Regarding citizenship, the Civil Rights Act declared that “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

For the modern reader, it’s certainly clearer how an immigrant can be “subject to a foreign power” than it is how he might not be “subject to the jurisdiction” of the U.S. while living here. But even if we assume that these provisions meant exactly the same thing — a matter of some dispute — there are serious problems to contend with before we conclude the provision excludes immigrants.

For one thing, this argument proves too much; it would suggest that legal Chinese immigrants wouldn’t be covered, as they remained subject to the government of China in a sense, when we know they were meant to be — both in the 14th Amendment and in the Civil Rights Act. In his message vetoing the act (a veto that was overridden), President Andrew Johnson specifically noted that the “provision comprehends the Chinese of the Pacific States.” (See page 1,679 here.)

Also, Senator Trumbull, who wrote the act, said in a letter to President Johnson that “the Bill declares ‘all persons’ born of parents domiciled in the United States, except untaxed Indians, to be citizens of the United States” — which implies that immigrants would be included, so long as they moved here permanently, establishing “domicile,” rather than just visiting. By a similar token, during the debates leading up to the act, Representative James F. Wilson said that “children born on our territory to temporary sojourners” might not be citizens.

Drawing the line this way would allow us to eliminate “birth tourism,” and generally to refuse citizenship to the children of immigrants who are here only temporarily, but it would be a stretch to take it as a license to exclude illegal immigrants in general. (A clever workaround, though, may be to say that for one’s kids to qualify for birthright citizenship, one must take concrete steps toward becoming a legal permanent resident, rather than just sneaking into the country and setting up a life here.)

Legal Interpretations in the Aftermath of the Amendment

To my mind, this is where the argument against birthright citizenship finds its greatest support. I give this less weight than the evidence in the foregoing sections, though, because some of these decisions (like some of the other arguments we’ve considered) contradict the clear statements of the amendment’s supporters by excluding all immigrants — and because the courts got some very big questions about the 14th Amendment wrong at this point in history, raising questions about whether we should trust their interpretations of smaller matters.

In the 1873 Slaughter-House Cases, in “dicta” — comments not directly relevant to the case at hand, and thus not binding precedent — the Supreme Court wrote that “the phrase, ‘subject to its jurisdiction’ was intended to exclude from [birthright citizenship] children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Certainly that’s a pretty clear statement from the highest court in the land.

The same year, the attorney general released an opinion stating, in regard to the question of whether someone who’d renounced his citizenship needed to be naturalized to get it back, that

the word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.

And more than a decade later, in Elk v. Wilkins, the Court addressed the question of whether someone born in a Native American tribe could sever his tribal relations and thereby gain an entitlement to U.S. citizenship. This issue is quite different from the one involving illegal immigrants, but in deciding the case, the Court made a point about consent that has become a major plank in the case against birthright citizenship: The Native American could not change his “allegiance” merely through his “own will without the action or assent of the United States.” Also: “To be a citizen of the United States is a political privilege that no one, not born to, can assume without its consent in some form.” (The notion of consent plays an especially large role in the analysis of Schuck and Smith, who argue at length that it was part of the age-old philosophical backing that undergirded the 14th Amendment.)

Cutting in the opposite direction, though, is 1898’s Wong Kim Ark — written, oddly enough, by the same guy who wrote Elk. Critics of birthright citizenship say this decision (A) was wrong on the merits and (B) didn’t address the question of illegal immigration, and the reasoning was certainly . . . curious. Rather than interpreting the 14th Amendment’s own text and history, the Court decided that the amendment was intended to implement the idea of citizenship we inherited from English common law, and then mainly focused on that instead.

At any rate, it found that a man born to Chinese-immigrant parents in the U.S. was a citizen, as were “all children here born of resident aliens” (with the usual exceptions of Native Americans, foreign diplomats, etc.). The man’s parents had come legally, though, so despite its broad language the case didn’t directly address the question as applied to illegal immigrants. And a dissent once again laid out the consent-based argument against birthright citizenship — emphasizing the notion that there’s a difference between mere “territorial” jurisdiction and “complete” or “political” jurisdiction, and that the 14th Amendment refers to the latter.

Conclusion

The argument against birthright citizenship certainly has a long history, as can be seen in these legal opinions released within decades of the 14th Amendment’s enactment. But as I said at the outset, I don’t quite find it convincing, given the more direct evidence from the text and more immediate historical context — though it must be conceded that we have no idea what the framers of the 14th Amendment would have thought about illegal immigrants in particular, because illegal immigrants simply didn’t exist back then.

To defend an executive order before the Supreme Court, however, the Trump administration would need to convince all five originalist judges that “subject to the jurisdiction” must be read in a way that’s somewhat quirky to modern ears, relies on a highly specific reading of the historical evidence, and overturns more than a century’s worth of standard practice. That’s a longshot.

Birthright citizenship is a nutty policy. But if I had to bet, I’d say it’s one we’re stuck with.

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