The past week the U.S. Supreme Court heard oral argument on the ability of the president to end birthright citizenship by executuve order. While most scholars, including yours truly believe the Citizenship Clause of the 14th Amendment grants all those born in this land citizenship at birth, the government in my opinion made the best argument it could on the matter. Essentially, the question turns on what the enacting Congress’ intent was upon the enactment of the 14th Amendment. Those that support the administration’s position believe the Clause’s “subject to the jurisdiction thereof” language was a condition to birthright citizenship. They accordingly argue that in order to be subject to the jurisdiction of the United States, those born here had to show “alliegence” to this country,” and in the case of the executive order, those that entered this country without doucmentation by definition have no allegience to this country. Indeed, just a few days ago in the Wall Street Journal, Professor Randy Barnett, made this very argument. As someone that has examined this issue for decades, and admires Barnett’s productivity, I can nonethless confidently say Proessor Barnett is wrong, and in fact, welcome the opportunity to debate him on the subject, as I have with other Trump defenders, including Professors John Eastman and Kurt Lash.
Aside from the above open invite to debate another consittutional big shot, let me take the liberty of attempting to describe the opponents of birthright citizenship’s position, and then setforth my own view on the matter. The following is a brief overview of a host of articles I have read on their position as well as my own writing addressing the attacks on jus soli citizenship and the defense I and others have made over the years.
When President Trump signed the Executive Order, he reignited a deep-seated legal and ideological battle. The Executive Order asserts the “subject to the jurisdiction thereof” language of the amendment puts a condition to what otherwise appears an unconditional right. As four federal courts were enjoining the President and thus putting a halt, at least temporarily, Trump’s legal academic defenders began their defense of the Executive Order, arguing the Constitution never intended to create unconditional birthright citizenship. First among them was Professor Richard Epstein in a blog post for the Hoover Institute, where he claims that the U.S. Supreme Court decision first recognizing birthright citizenship, United States v. Wong Kim Ark, has been misread for over a century. Epstein’s post was followed by two additional academic Trump defenders in a New York Times op-ed entitled, “Trump Might Have a Case on Birthright Citizenship.” In this op-ed, Professors Randy Barnett and IIan Wurman, focus on the commonly understood meaning of the Amendment’s terms at the time of the passage of the Amendment, observing the “central question raised by Mr. Trump’s order is what it means to be “subject to the jurisdiction” of the United States.” Much like Epstein, Barnett and Wurman first argue the Wong Kim Ark decision never squarely addressed whether children of the undocumented could become citizens, then they purportedly attempt to come up with the true meaning of the Citizenship Clause of the 14th Amendment, despite the fact neither the Amendment nor its legislative history support their argument. Instead of focusing on the Amendment, Barnett and Wurman switch gears by observing the 14th Amendment was intended to overturn the Dred Scott decision, which notoriously held that African Americans could not become U.S. citizens. This rhetorical device gives Barnett and Wurman the ease with which to switch focus from the understanding of the term “jurisdiction” as stated by the 39th Congress in enacting the 14th Amendment, which should be the originalist’s undertaking, to what according to them is essential about citizenship: “allegiance to the United States.” According to them, because the undocumented entered the country in defiance of U.S. law, or not in “amity” as they refer to, the undocumented owe no allegiance to this country. Then they make the logical leap of arguing that because their parents owed no allegiance, by extension somehow the children of the undocumented born in the United States somehow likewise owe no allegiance, and therefore should not be deemed to be citizens. In other words, according to Barnett and Wurman, the “jurisdiction” term of the 14th Amendment doesn’t mean jurisdiction, it means allegiance.
My view, and the view of most scholars that have examined the issue, is basically as follows: The defenders of President Trump’s executive order attmepting to end birthright citiznehsip, use an originalist interpretation of the 14th Amendment, to argue the term jurisdiction used in the 14th Amendment meant allegiance with the country. From a legislative history vantage point, they largely hang their whole argument on a passage of Senator Trumbull’s remarks where he appears to equate jurisdiction with allegiance. In doing so, they distort the legislative history by engaging in a first-year law student mistake of not reading the entirety of the text in question. The broader passage in which Senator Trumbull refers to allegiance eviscerates today’s efforts to equate allegiance with jurisdiction. They also use the common law at the time of the passage of the 14th Amendment, which also is largely against them, but due to space constraints here, I will leave that analysis for another post or debate.
The legislative discussion where the issue is raised, Senator Trumbell discussed the citizenship of native Americans and his reference to “owing allegiance to nobody else” emphasizes this point. Because the federal government made treaties with tribes—leaving them governed by their own laws—they stood outside what Trumbull termed “complete jurisdiction.” He stated:
“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. … What do we mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else… That is what it means. … We have had in this country … a large region of country within the territorial limits of the United States … over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indians roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them.”
Trumbull then explicitly ties being “subject to the jurisdiction” to being accountable in U.S. courts, adding: “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.” Trumbull explained, would a state “think of punishing them for instituting among themselves their own tribal regulations?” Does the United States “pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another?” “They are not subject to our jurisdiction,” Trumbull concluded; “[i]t is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.” The amendment could not “embrace the wild Indians of the plains or any with whom we have treaty relations, for the very fact that we have treaty relations with them shows that they are not subject to our jurisdiction. We cannot make a treaty with ourselves; it would be absurd.” Trumbull observed, “there are decisions that treat” the indigenous people “as subjects in some respects.” He nonetheless found, they are not “subject to the jurisdiction of the United States in any legitimate sense; certainly not in the sense that the language is used here.” In other words, Senator Trumbull’s concept of “allegiance” simply underscores that if someone can be sued in U.S. courts and is compelled to comply with ordinary federal or state law, they have “complete allegiance.”
There is simply no reference to an explicit or implicit volitional oath of exclusive loyalty in the congressional debate associated with the passage of the 14th Amendment. Instead, Senator Trumbell used “allegiance” interchangeably with “being fully subject to our laws,” i.e., having to follow our laws, which is precisely what foreign ambassadors and members of non-assimilated tribes were not required to do. As a result, any foreign national with no such immunity—whether lawfully or unlawfully present— falls under “the same jurisdiction” that applies to citizens and therefore meets the Amendment’s standard of being “subject to the jurisdiction thereof.”
Furthermore, the legislative history of the passage of the 14th Amendment highlights birthright citizenship would extend to children of immigrants, emphasizing that subjective allegiance in the sense that the denationalizers describe, was not and is not a requirement. Senator Cowan, for instance, voiced his objections to offspring of Chinese and Romani immigrants gaining citizenship under the clause. He asked: “Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?” Cowan further urged that Congress create an additional carveout to birthright citizenship, stating: “I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be a citizen of the United States, we ought to exclude others besides Indians.” Senator John Conness directly refuted Cowan, making clear that the amendment would include immigrant children regardless of their parents’ cultural ties: “The proposition before us … 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 [the Civil Rights Act of 1866]; 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.”
Because the 39th Congress did not amend or change the proposed 14th Amendment’s language, they came to the agreement that the children of Chinese and Romani immigrants would be included—even though the parents obviously retained some amount of ties to their home nations—these comments dismantle any claim that “subject to the jurisdiction thereof” hinged on the parents’ personal or undivided political allegiance to the United States. Instead, the framers made clear that the absence of diplomatic or tribal immunity (being self-governed by and not being subject to ordinary U.S. law) being born in the U.S. was the controlling criterion.
In addtion, every U.S. Supreme Court decision addressing birthright citizenship has recognized the right. The leading Supreme Court decision to address birthright citizenship, United States v. Wong Kim Ark, unequivocally affirmed birthright citizenship for all born in the United States. The Wong Kim Ark opinion was subsequently cited and followed by the Supreme Court over a half-dozen times over more than a century after its publication
May the debates and comments continue….