HUMAN EVENTS: No, 'birthright citizenship' is not a constitutional requirement

Birthright citizenship has at least contributed to and exacerbated the crisis of illegal immigration.

Birthright citizenship has at least contributed to and exacerbated the crisis of illegal immigration.

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When it comes to ending ‘birthright citizenship,’ President Trump was completely right.

To say this as an observation about policy is trite; every conservative and MAGA voter in America knows that there is no rational reason why any non-citizen born on US soil, whether by accident or intent, should be considered a citizen. The perverse incentives alone boggle the mind; most obviously, it means that any foreign woman, whether in the US temporarily, permanently, or even illegally has every reason to try to get pregnant as soon as humanly possible upon arriving in the US. For heaven’s sake, this is where the phenomenon of “anchor babies” comes from; no immigration official wants to be responsible for separating a mother from her child, so one “citizen” born on US soil often becomes cause by which to force entire families across the border through chain migration. Anyone in politics can see how unsustainable such a policy is. Some just ignore it because they think they can get better census results and possibly more votes out of it.

However, when it comes to the question of birthright citizenship, good policy is not the only north star by which politicians must navigate. The entire notion of “birthright citizenship,” after all, hinges on the wording of a particular passage in the 14th amendment of the US constitution; a passage which is unlikely to be changed now or ever. That passage reads as follows: “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.” (emphasis ours) The italicized portion is the only matter in controversy: clearly, being born or naturalized in the US is not enough, so what does it mean to also be “subject to the jurisdiction thereof?”

The conventional wisdom, which gave rise to the birthright citizenship regime to begin with, was that “subject to the jurisdiction thereof” simply meant anyone who had to obey the laws of the United States while present in our nation. And if you accept that premise, then the logic of birthright citizenship is, indeed, inescapable: the only exceptions would be the children of foreign-born soldiers, who are obviously not subject to our laws, and of diplomats, who enjoy diplomatic immunity. It was this reading which led US District Judge John Coughenour to declare President Trump’s executive order ending birthright citizenship “blatantly unconstitutional,” a ruling which the administration has since appealed.



And you know what? We will give the Left this much on that particular point: they are at least pointing to a plausible interpretation of the plain words of the Constitution unlike multiple other issues. However, we do not believe that interpretation is accurate. Rather, like the Claremont Institute’s Ryan Williams, we think that the framers of the 14th amendment had something entirely different in mind when they wrote this particular text into law.

At the risk of repeating Williams’ argument, here is what the reader should know: the 14th amendment was originally envisioned as a means to enshrine the 1866 Civil Rights Act into the Constitution, thus making civil rights for blacks harder to erode after the Civil War. The 1866 Civil Rights Act, like the 14th amendment, also had a citizenship clause, and it read as follows: “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.” The key difference, as you can see, is the phrase not subject to any foreign power. And just in case we were in any doubt as to who that referred to, the amendment’s floor manager Sen. Jacob Howard clarified that what it meant was 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.”

In other words, the point of the amendment was simple: to declare every slave born in the United States a citizen, but not every single person born in the country, period. A better way of phrasing what the amendment was supposed to say, in other words, would be something like “anyone born in the United States who also owes allegiance to the United States.” But to no one’s surprise, like with so many things, the academic and bureaucratic Left took rights enshrined to ensure black people are equal under the law and co-opted them to extend to whoever they wanted without any concern for the people the law was meant to protect and elevate.

And that started (as in so many cases) at the Supreme Court. Specifically, in the case US v. Wong Kim Ark, the Supreme Court ruled, 6-2, that the 14th amendment made any person subject to the authority of US courts and laws a citizen at birth. However, that decision was not unanimous. No less than Melville Fuller, the Chief Justice at the time, dissented, joined by Associate Justice John Harlan. Their argument was that common law – a British invention – had no place in the discussion of US citizenship, because the US had already made modifications to the British system of citizenship. They, too, pointed to the Civil Rights Act of 1866 and argued, “it is not open to reasonable doubt that the words ‘subject to the jurisdiction thereof,’ in [the 14th] amendment, were used as synonymous with the words ‘and not subject to any foreign power.’” In retrospect, it’s hard to argue with any part of this logic.

However, herein lies the difficulty: even in much clearer-cut cases of logical incorrectness than this, the Supreme Court has often been very reluctant to overturn past cases thanks to the principle of stare decisis, absent a massive moral outrage being caused by those past decisions. We know which cases have been overturned by massive moral failure in the past – Plessy v Ferguson, which vindicated segregation, and Korematsu v United States, which permitted Japanese internment, to name just two – so the question still remains: could Wong Kim Ark be among them? We can’t say for sure; even with six Republican-appointed justices, the Supreme Court often disappoints the most ardent MAGA fan.

But we can say this: given the moral outrage which exists every day at the Southern border, mere judicial inertia of the type which usually permits precedent to go on being applied without question is no longer sufficient on this issue. Birthright citizenship has at least contributed to and exacerbated the crisis of illegal immigration. It has given every cartel member a dream to sell to any woman to legitimize not merely illegal crossings, but rape. After all, what does a woman so afflicted have to complain about, if she’s violated and gives birth from it while in the US? Her permanent legal status would be assured. Any law or legal principle which permits that sort of grotesque loophole to be exploited by criminals is up for question, at least, and should by rights be on the chopping block. Birthright citizenship is such a principle; we hope the Supreme Court finally lets it die.
 

Image: Title: We the People
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