Among the issues stirred by by Donald Trump is that of birthright citizenship, the idea held as a virtual sacrament by amnesty and open borders cracktivists, that when a baby exits the birth canal and breathes its first breath, it is, so long as it breathes on American soil, by means of the 14th Amendment https://www.law.cornell.edu/constitution/amendmentxiv (ratified in 1868) an American citizen. The contemporary term of art is “anchor baby,” because that infant’s supposed citizenship also confers innumerable benefits on his parent, siblings, extended family, relatives, etc. forever after, amen. The child’s anchor sunk deep in the Constitution and American soil, the boat to which it is attached, regardless if it is full of the virtuous or vicious criminals, is virtually impossible to compel to sail for the waters of parental citizenship.
That’s all the nautical metaphors I can stand. Whew.
The portion of the 14th Amendment that relates to this issue is section 1, and particularly the first sentence:
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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Let us first explore the thoughts of learned lawyers, and end with the thoughts of the proprietor of this scruffy little blog, a former police officer and current English teacher and practicing patriot. First, John Yoo, a former George W. Bush DOJ attorney and current law professor at–and this should give you a clue as to his leanings–Berkeley:
Constitutional law, tradition, and fairness all argue in favor of birthright citizenship. [skip]
Congress drafted and sent the amendment to the states for ratification not to change the definition of citizenship, but to affirm American practice in effect ever since the Revolution. While the original Constitution mentions citizenship as a requirement for federal office, it does not define it. Borrowing from the English common law (which admittedly defined subjects rather than citizens), the United States has always filled this gap by following jus solis (citizenship defined by soil, i.e., birthplace) as opposed to jus sanguinis (citizenship defined by blood, i.e., citizenship of the parents).
This is the heart of Yoo’s argument:
Trump and his supporters (including some writers for National Review) may draw support from the phrase ‘and subject to the jurisdiction thereof.’ Some have argued that this language must exclude the children of aliens from citizenship, because aliens owe allegiance to another nation and hence are not under “the jurisdiction” of the United States. But the constitutional text requires only that the children born in the United States fall subject to American jurisdiction, which means that they are governed by American law. Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment. Other uses of ‘jurisdiction’ in the Constitution, such as in the 13th and 14th Amendments, also refer to the power to govern by law, not national allegiance.
Instead, ‘subject to the jurisdiction thereof’ refers to certain discrete categories of people excluded from citizenship, even though they might be born on U.S. territory. These include the children of diplomats and enemy soldiers at war who are occupying territory. These individuals could be on U.S. territory, but are not subject to U.S. law. A third and obvious category was American Indians. At the time of the 14th Amendment, American Indians were still considered semi-sovereigns who governed themselves with their own laws and made treaties with the United States. But ‘subject to the jurisdiction thereof’ did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship. Instead, the phrase recognized a few narrow exceptions to the general principle of birthright citizenship that has prevailed throughout American history.
In United States v. Wong Kim Ark (1898), the Supreme Court faced the birthright-citizenship question directly. Ark involved a child born to Chinese parents in San Francisco. The child left the United States for a trip but was barred from returning to the United States under the Chinese Exclusion Act. While the parents remained Chinese citizens, the child claimed U.S. citizenship under the birthright reading of the 14th Amendment. The Supreme Court upheld the child’s citizenship by virtue of his birth in San Francisco. While Congress could block immigration entirely or control the process of naturalization, it could not alter the right of citizenship for all born within American borders. [skip]
The Supreme Court has never seen fit to question its original judgment in Wong Kim Ark. In this case, unlike others (such as Obergefell), the Supreme Court read the constitutional text, structure, and history exactly right.
Yoo is directly implying–take the link and read the entire article–that the Supreme Court has definitively ruled in a specific case on the issue of anchor babies, and that ruling absolutely makes anyone born on American soil an American citizen. He is being, at best, misleading, particularly in insisting that his view is founded in true conservative principle. More on this later.
Holding an opposing view is Richard Samuelson, professor of history at California State University, San Bernardino. He writes in the Federalist.com:
Donald Trump’s latest outrage is his call for ending ‘birthright citizenship.’ The Left dismisses the idea as anti-immigrant, extreme (their favorite epithet), and, above all unconstitutional. Then again, the Left believes that the Constitution is a ‘living document.’ On what grounds must it be ‘dead’ in this regard? That a ‘Legal Affairs Writer’ for the Huffington Post says that an amendment to end ‘birthright’ would itself be unconstitutional tells us all we need to know about what the ‘living constitution’ truly means to the Left—that the Constitution means whatever they think justice requires, the actual text of the constitution be damned.
Amending the Constitution is itself unconstitutional? That idea rather eloquently illustrates the kind of thinking and legal analysis prevalent on the left.
The reality of the situation is that the language of the Amendment is very much open to interpretation, as is even Justice Story’s opinion. Moreover, Wong Kim Ark did not necessarily decide the entire question. Wong Kim Ark had, the Court noted, ‘parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States.’ In other words, he was the child of permanent legal residents of the U.S. The case need not apply to children of parents here temporarily or illegally.
It is also worth noting that the Court’s decision in Wong Kim Ark was not unanimous. Chief Justice Fuller dissented. He was joined by Justice Harlan. There is more than one way to read the phrase ‘subject to the jurisdiction thereof.’ As some commentators have noted, Harry Reid suggested repealing “birthright” in the 1990s. Back then at least, prominent Democrats recognized that the matter was open to interpretation. (The activist Left, in good Soviet style, forced an apology out of Senator Reid in 2006.) [skip]
My research thus far indicates that the Court has not ruled on the citizenship of the children of people here temporarily or people here in violation of our laws. (Although there is unbinding dicta in one case.) In his book on the Conflict of the Laws, Justice Story endorsed the idea that there are limitations on making soil the prime determinant of political allegiance: ‘a reasonable qualification of this rule [allegiance based on location at birth] would seem to be, that it should not apply to the children of parents, who were in itinere in the country, or abiding there for temporary purposes.’ He did note, however, that that qualification is not ‘universally established.
Here is the heart of Samuelson’s argument:
If in America the people are supposed to rule, then it must be the case that we the people have the right to decide who is eligible to join us as fellow-citizens. That the Left says that we cannot even amend the constitution here tells us a great deal about how the Left views the principle of consent. Given modern transportation and tourism, to say that anyone born on American soil, however they got here, undermines the right of the people to self-government. After all, what are the infamous birthright tourism hotels if not a fraud perpetrated on the American people.
In other words, there are very good reasons to maintain that according to American principles citizenship is reserved to people who have chosen to be American. As a practical matter, their children are also citizens, but, as the naturalization act of 1790 notes, not their grandchildren if the family has remained outside the United States, choosing not to participate in its civic life. America has traditionally not been a nation based upon bloodlines, after all. (And what is family unification if not a policy of making bloodlines paramount?) That is why we have regularly naturalized new citizens in significant numbers. That said, doing so is a choice we the people have the right to make or we cease to be our own governors. There is nothing in the 14th Amendment, reasonably construed, that suggests otherwise. The 14th Amendment can be read to ensure that the children of anyone who we have agreed to come reside with us permanently are citizens, but not those who we have admitted only on a temporary basis or those who break our laws to enter.
Consider too Ann Coulter, the witty and insightful conservative commentator and best-selling author who also happens to be an attorney. She writes:
— Supreme Court opinion in Elk v. Wilkins (1884):
‘The main object of the opening sentence of the 14th Amendment was … to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States … The evident meaning of (the words, “and subject to the jurisdiction thereof”) is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. … Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterward, except by being naturalized …’
One has to leap forward 200 years from ‘the founding of the republic’ to find the first claim that kids born to illegal immigrants are citizens: To wit, in dicta (irrelevant chitchat) by Justice William Brennan, slipped into the footnote of a 5-4 decision in 1982.
So to be precise, what Yoo means by the ‘founding of the republic,’ and Rivkin means by ‘the original public meaning’ of the 14th Amendment, is: ‘Brennan dicta from a 1982 opinion.
This is an important point:
Perhaps, if asked, the Supreme Court would discover a ‘constitutional’ right for illegal aliens to sneak into the country, drop a baby, and win citizenship for the kid and welfare benefits for the whole family. (Seventy-one percent of illegal immigrant households with children are on government assistance.)
But it is a fact that the citizenship of illegal alien kids has never been argued, briefed or ruled on by the Supreme Court.
Yoo and Rivkin aren’t stupid. It appears that the most significant part of their analysis was Yoo’s legal opinion: ‘I don’t think Trump is a Republican. I think actually he is ruining the Republican Party.’ Please hire me, Jeb!! (or Rubio)!
And now, analysis from one who is uniquely qualified to discourse on this subject by virtue of being a veteran and an American citizen who was actually born in America to naturally-born citizen-parents: me.
I propose a set of general principles that can easily govern any immigration-related policy:
(1) The natural-born and naturalized citizens of America have the absolute power to determine who may become Americans, and the circumstances by which naturalization occurs.
(2) No foreign citizen has a right to become an American. It is a privilege granted by the will of the American people.
(3) Any and all immigration laws must be, above all, for the benefit of the citizens of America.
(4) All immigration laws must be enforced or repealed. We do not write laws to make anyone feel good, or to “make a statement.”
(5) The Constitution is the supreme law of the land (I know no one should ever have to say this, but these days, it seems necessary as a disclaimer before almost any subject is discussed).
(6) Violators of immigration laws should be prosecuted, and when their sentences are served, deported.
(7) Nations that encourage and/or assist illegal immigration to America should suffer debilitating consequences.
(8) Foreign citizens living in America, legally or illegally, committing serial misdemeanors or a single felony should be prosecuted, and when their sentences are served, deported.
(9) Foreign citizens caught in America after being deported once should face a substantial sentence with no parole, and after serving their sentence, be deported. A third violation should trigger an automatic life sentence.
(10) Employers hiring foreign citizens illegally in America should be prosecuted and face mandatory heavy fines and jail sentences.
Am I mean? Heartless? Do I hate the poor and the oppressed? If thinking the Constitution and lesser laws should be obeyed and that immigration must benefit American citizens, I suppose I am all of those things.
Regardless, it is absolutely clear that the 14th Amendment does not mandate birthright citizenship, and it is equally clear that the Supreme Court has never ruled, even indirectly, on that issue. Circa 2015, Americans are not at all happy about government, and are particularly unhappy about the non-existent enforcement of immigration laws, and of Mr. Obama’s lawlessness in this, and other matters.
Perhaps the smartest thing Republicans can do–and I don’t trust any of them on Immigration–particularly not Jeb Bush and Marco Rubio–is to say that immigration laws must always be for the benefit of natural-born Americans and naturalized Americans. We must enforce immigration laws effectively and completely–just as we must enforce all laws–and America can’t afford to bankroll the citizens of every other nation.
Unfortunately, I suspect we’ll see, yet again, why the Republican Party is justly known as the “Stupid Party.” The 2016 presidential election is the Republicans to lose, and one of the surest ways to lose it is to be a feckless panderer on issues of law and American sovereignty. We’ll never recover from the depredations of the Obama years by weakness, to say nothing of becoming strong and prosperous again.