Birthright Citizenship and the 14th Amendment

The news today is full of a lot of noise about Trump's statement in an interview that he believes he can end "birthright citizenship" with an executive order.

The entire situation is deeply disappointing, no matter what direction you look.

On the one hand, we have the usual: Trump riling people up over an issue that really isn't an issue. Even using the highest numbers for birth tourism that I could find (provided by a group that in its own words "favors far lower immigration numbers and produces research to further those views."), we are talking about less than 1% of all births in the USA each year (40,000 out of 4.5 million). Even if I used their "other" highest number (they speculate 200,000 births to people temporarily in the USA), it is still only around 4.5% of annual births. And remember, these numbers come from an organization with a clear agenda. There's just nothing to be upset about here. Unless, like so many conservatives, you care more about the idea that one "undeserving" person received our society's help than you do about the full cost (in all senses) of implementing policies that will prevent such "injustices".

On the other hand, there is the usual cacophany of opposition voices immediately accusing Trump of violating his oath to uphold the constitution, of attempting to amend the constitution by executive order (clearly not possible) and more. Look, I'm no fan of Trump. In fact, I think he's a miserable dimwit of a liar who should never, ever have been president. But ... he's not quite that stupid. Well, OK, he is, but not in this instance.

Even a lot of more serious media outlets are not presenting the real story about this (though credit to the WaPo for their attempt to do so).

What's going on?

To understand where this is all coming from, you have to (1) actually read the 14th amendment (2) go back to the 1980s (3) read stuff.

The 14th Amendment

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.

This controversy/proposed EO hinges on the highlighted phrase "subject to the jurisdiction thereof". Those yelling about Trump and the constitution are ignoring that there has been at the very least a bit of legal controversy about what this phrase means. What Trump has been told, presumably (since he's incapable of explaining it us), is that he could direct his administration to interpret "subject to the jurisdiction thereof" in a different way than has has been conventional for decades or even centuries.

Specifically, he could direct an interpretation that people on US soil without legal authority are not subject to the jurisdiction of the US, and are thus not covered by the 14th Amendment.

Nothing more, nothing less.

(Of course, there is a bit of a chicken and egg situation here, since the 14th Amendment says that by being born on US soil, you instantly gain legal authority to be here. But that aspect of this whole issue is for someone else to deal with).

The 1980s

From Magliocca (cite below):

The origin of a challenge to constitutional orthodoxy is often hard to pinpoint, but in this case the revisionism can be traced to a book written by Peter H. Schuck and Rogers M. Smith in the 1980s (Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens In The American Polity (1985)). They argued that the Fourteenth Amendment's mandate -- that all persons born here must also be "subject to the jurisdiction" of the United States to be citizens -- could be read to exclude the children of illegal aliens.The historical support for this claim rests in large part on the fact that the "subject to the jurisdiction" clause excluded the Native American Tribes from birthright citizenship. Drawing on this point, Schuck and Smith reasoned that the text requires more than "the individual's subjection to the government's police power and criminal jurisdiction." In their view, there must also be "a reciprocal relationship between them at the time of birth, in which the government consented to the individual's presence and status and offered him complete protection. Though this analysis is not widely accepted, the book remains an important touchstone in the illegal immigration debate.

Reading

When I google for a phrase like "subject to the jurisdiction thereof" and find articles going back several years from rightwing/conservative authors, I know there's more to the story than is indicated by the people screaming about how Trump's EO would violate the Constitution.

You can get a long overview of the "federalist", "right wing" view on the 14th amendment (originating mostly from Shuck & Smith) right here: What ‘Subject to the Jurisdiction Thereof’ Really Means It's a good read. If you read it, as I did this morning, you may find yourself suprisingly persuaded that maybe these folks, who sadly prop up others spewing racial and ethnic bile, could have a fairly strong case. Just what does that phrase mean anyway?

In popular culture and mainstream media, most people interpret it to simply imply that a person is subject the laws and police powers of the United States government. This differentiates diplomats and their families, as well any putative enemy force that happens to present in the country. Essentially: you are present in the USA, could be arrested by the authorities, ergo you are subject to the jurisdiction thereof. Under this interpetation, it is clear that any child born on US soil is a citizen.

Various parts of the conservative movement want a different interpretation (as evidenced by the article cited above). They think that is it obvious that people without legal authority to be present in the United States are not subject to its jurisdiction. They also advocate a position sometimes known as "mutual consent", in which citizenship is only possible if both the putative citizen and nation of which citizenship is sought agree.

The article makes a reasonably compelling case, citing often from the congressional record at the time the 14th amendment was adopted. They make it clear that specific senators closely involved with drafting the amendment were aware of the ambiguity of the language they were using, but ultimately felt it was the best they could come up. The conclusion of the cited article is that any person who has allegiance to another country cannot be considered subject to the jurisdiction of the United States, and that therefore the child of such a person is not entitled to citizenship merely by the fact of being born on US soil.

But you know these conservative/rightwing/federalists. Just like anybody else, they selectively cite from the record, ignore other aspects of the story, and can easily you lead you down a road that doesn't really exist. So I next turned to a 2007/2014 paper by Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law). Indians and Invaders: The Citizenship Clause and Illegal Aliens

Magliocca, who had posted about Trump's statement earlier today, manages to do what the Federalist Blog article fails to: layout the position of those he disagrees with, and explain why they are wrong.

Near his conclusion, he writes:

Although the jurisdiction element of the Citizenship Clause does require the United States to exercise real authority over its territory, there is no reason to think that the government could not do so with respect to illegal immigrants if it actually tried. Perhaps this issue could be revisited if the federal government took strong action that came to naught; but under present circumstances, the only reasonable con- clusion is that jurisdiction does exist and birth citizenship does apply.

Magliocca's article is extremely interesting, in large part because it draws in the vexxing issue (at the time of the 14th Amendment, anyway) of what to do about citizenship for Native Americans, something the FB post completely ignores. Magliocca makes a reasonably strong claim that it was Native Americans that were actually at the heart of Trumbull and Howard's discussions and speeches about "jurisdiction". I love how he manages to almost snarkily note that there was no concept of an illegal immigrant in the US when the 14th Amendment was drafted, and that therefore reinterpreting the "jurisdiction" clause as somehow applying to such cases is hardly "originalism", as conservatives would have you believe.

You should really read it.

Note: the Supreme Court has visited the 14th Amendment very rarely (arguably only once or possibly twice since it passed). The 6-2 Wong Kim Ark decision in 1898 does offer some guidance regarding the jurisdiction clause, but nothing direct enough to fully resolve its meaning. You can read about the decision (and the 2 dissents) on Wikipedia

Conclusion

Yawn.

Yet another case where the conservative right cooks up an "originalist" position on some constitutional matter by willfully and skillfully ignoring context that they don't like. Yes, there's ambiguity in the jurisdiction clause. No, it doesn't mean that children of people present illegally in the US are not covered by the 14th Amendment (1)

And yet another case where a crowd of Trump critics and a lot of the media make a bunch of noise without appearing to have any understanding of what is actually at issue here.

If you could make a truly solid case that "subject to the jurisdiction thereof" does NOT apply to people illegally present in the US, then what Trump is proposing could be entirely consistent with the US Constitution. But the conservative right hasn't made such a case, and from my reading, they are not likely to be able to do so.

None of that will stop Trump and his shameless administration from stirring fear, hatred and division, and it probably won't change the mind of the 42% or so of Americans who support this shameful nonsense.

Footnotes

(1) also, as a few news outlets and commenters are noting, including even (!) Richard Posner, there is a statute that provides birthright citizenship in addition to the 14th Amendment, and that would need to overturned as well.

[ Disclaimer: I was born a citizen of the United Kingdom, and was naturalized as a US citizen in 2017 after 28 years as a permanent resident of the United States. ]