The late Supreme Court Justice Antonin Scalia was what we call an “originalist” when it came to interpreting the U.S. Constitution. He believed the only way to read the Constitution was in the context of the times when its provisions were written which formed the intent of those who wrote and later amended it. We could only interpret what they meant by reading what they wrote through the filter of the events of their day, not our day.
The issue of the 14th Amendment and whether it conveys birthright citizenship just from being born on American soil has resurfaced in the context of the current debate on immigration and border security. The answer can be found in looking at the times in which it was written and examining the actual words and thoughts of those who wrote it.
The 14h Amendment was written in 1868 after a bitter Civil War ended slavery. It was written to ensure the civil rights of freed slaves and to correct the injustices spawned by the 1857 Dred Scott decision which denied that blacks were entitled to citizenship under the Constitution. Surely it cannot be seriously argued that the authors of the 14th Amendment had in mind babies born to residents of Mexico, Guatemala, Honduras, and El Salvador who managed to sneak their pregnant bodies past a U.S. Border Patrol that didn’t exist yet in violation of immigration laws that hadn’t been written yet?
Like abortion rights, which were divined from the “penumbras” and “emanations” said to be lurking somewhere in that document, supporters of birthright citizenship say, well, the language is imprecise and the authors didn’t really mean to exclude the offspring of Guatemalans born in states which didn’t exist in 1868. This is a clear violation of the Scalia originalist doctrine. The Constitution is not a living document and should be read in the context of the events of 1868, not 2019.
Speaking to reporters outside the White House on Wednesday, President Trump again threatened to end what he called the “ridiculous” policy of birthright citizenship, which awards citizenship automatically to those born in the United States.
“We’re looking at that very seriously,” Trump told reporters as he left the White House for Kentucky. “Birthright citizenship, where you have a baby on our land — you walk over the border, have a baby, congratulations, the baby’s now a U.S. citizen. We’re looking at it very, very seriously …It’s, frankly, ridiculous.”
In an op-ed published last year by FoxNews.com, Heritage Foundation senior legal fellow Hans A. von Spakovsky said critics “conveniently ignored or misinterpreted” the 14th Amendment’s requirement that illegal immigrant children be “subject to” the jurisdiction of the United States.
“The fact that tourists or illegal immigrants are subject to our laws and our courts if they violate our laws means that they are subject to the territorial jurisdiction of the U.S. and can be prosecuted,” Spakovsky wrote. “But it does not place them within the political ‘jurisdiction’ of the United States as that phrase was defined by the framers of the 14th Amendment.”
Spakovsky added: “Today many people do not seem to understand the distinction between partial, territorial jurisdiction — which subjects all foreigners who enter the U.S. to the jurisdiction of our laws — and complete political jurisdiction, which requires allegiance to the U.S. government as well.”
During debate on the Fourteenth Amendment, Sen. Jacob Merritt Howard of Michigan added jurisdiction language specifically to avoid accident of birth being the sole criteria for citizenship. And if citizenship was determined just by place of birth, why did it take an act of Congress in 1922 to give American Indians birthright citizenship, if they already had citizenship by birthright under the14th Amendment?
Rep. John Bingham of Ohio, who is regarded as the father of the 14th Amendment, said it meant that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your constitution itself. A natural born citizen…”
Chapman University and a fellow at the Claremont Institute, argued that illegal aliens are still foreign nationals and are not subject to U.S. jurisdiction, except for purposes of deportation, and therefore their children born on American soil should not be automatically considered U.S. citizens:
John Eastman of the Claremont Institute testified before the subcommittee, saying, the Supreme Court has never actually held that anyone who happens to make it to U.S. soil can unilaterally bestow citizenship on their children merely by giving birth here.
Although such an understanding of the Fourteenth Amendment has become widespread in recent years, it is not the understanding of those who drafted the Fourteenth Amendment, or of those who ratified it, or of the leading constitutional commentators of the time. Neither was it the understanding of the Supreme Court when the Court first considered the matter in 1872, or when it considered the matter a second time a decade later in 1884, or even when it considered the matter a third time fifteen years after that in the decision many erroneously view as interpreting the Fourteenth Amendment to mandate automatic citizenship for anyone and everyone born on U.S. soil, whether their parents were here permanently or only temporarily, legally or illegally, or might even be here as enemy combatants seeking to commit acts of terrorism against the United States and its citizens.
Eastman argues that the modern view of the Fourteenth Amendment ignores a key phrase in the Citizenship Clause. Mere birth on U.S. soil just isn’t enough. “A person must be both ‘born or naturalized in the United States’ and ‘subject to its jurisdiction.’”
In a interview with Fox News’ Tucker Carlson in July, Michael Anton, a former Trump national security adviser, pointed out:
… “there’s a clause in the middle of the amendment that people ignore or they misinterpret — subject to the jurisdiction thereof…
“What they are saying is, if you are born on U.S. soil subject to the jurisdiction of the United States — meaning you’re the child of citizens or the child of legal immigrants, then you are entitled to citizenship. “If you are here illegally, if you owe allegiance to a foreign nation, if you’re the citizen of a foreign country, that clause does not apply to you.”
There may be hope though for correctly interpreting the 14th Amendment through a court case as President Trump reshapes the courts, particularly the Supreme Court, with justices of a more “originalist” bent. The misinterpretation could be corrected through clarifying legislation or even by executive order. We can correct it and we should. Donald Trump was right — becoming a U.S. citizen should require more than your mother successfully sneaking past the U.S. Border Patrol.