The Corner

Law & the Courts

On Birthright Citizenship and Our Evolving Jurisdiction

In response to Credit Where It’S Due: Kate Called Dean

Rich, Professor Graglia was clearly right that the Fourteenth Amendment, far from compelling the grant of birthright citizenship, is better understood as denying it. Yet, as we’ve recently been reminded by the Supremes, being right does not always matter – after all, we’re evolving! How hard is it to imagine Justice Anthony Kennedy writing something like …

The nature of injustice is that we may not always see it in our own times. The generation that wrote and ratified the Fourteenth Amendment did not presume to know the extent of “jurisdiction” in all its dimensions, and so they entrusted to future generations a charter protecting all who come within our jurisdiction as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim of that one is subject to the jurisdiction of the United States – indeed, to the jurisdiction of this Court – must be addressed.

As today’s NR editorial observes, it will be necessary to get the Supreme Court’s cooperation – i.e., to do what used to be the justices’ job of applying the law as it was understood when adopted – in order to restore the Fourteenth Amendment’s denial of birthright citizenship to children whose parents owe allegiance to a country other than the United States. That may depend on what “new insight” the justices believe they have on what, in recent years, they have construed as  the quite elastic concept of jurisdiction.

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