A primer on birthright citizenship and the U.S. Constitution.
This week each party seems to be trying its best to ensure that the other one wins the election. Hillary Clinton has her email affair (see nearby). The Republican candidates in turn are making an in-kind contribution to her campaign with their garish stampede against automatic citizenship for children born on U.S. soil to illegal immigrants.
Donald Trump fomented the mayhem when he told Bill O’Reilly on Fox News that the Fourteenth Amendment is unconstitutional. “It’s not going to hold up in court, it’s going to have to be tested,” he said. The distinguished legal scholar added that “I don’t think they have American citizenship, and if you speak to some very, very good lawyers—some would disagree. But many of them agree with me—you’re going to find they do not have American citizenship. We have to start a process where we take back our country. Our country is going to hell.”
Nearly half the GOP field apparently believes Mr. Trump has found a winning political message. Scott Walker came out against birthright citizenship at the Iowa state fair. So have Rand Paul, Ben Carson, Lindsey Graham, Ted Cruz, Rick Santorum and Bobby Jindal (a birthright citizen himself). Even Jeb Bush called for a crackdown on abuses by parents producing “anchor babies.”
Mr. Trump may pay for top-flight attorneys in his real-estate dealings but his constitutional counsel isn’t so hot. In 1868 the U.S. adopted the Fourteenth Amendment to overturn the Dred Scott decision. As school children learn but too many adults forget, the Supreme Court had held in 1857 that the descendants of slaves, even free blacks, could not be American citizens.
Thus the Fourteenth Amendment begins, “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.” This is the common-law doctrine of jus soli, and the meaning of the language is straightforward.
To the extent an alternative reading exists, restrictionists claim the “subject to the jurisdiction” clause creates ambiguity about the Amendment’s true meaning. Alien parents supposedly owe allegiance to a different sovereign, and therefore they are not subject to U.S. jurisdiction, and therefore their U.S.-born kids are not entitled to citizenship.
But “jurisdiction” defines the territory where the force of law applies and to whom—and this principle is well settled to include almost everyone within U.S. borders, regardless of their home country or the circumstances of their birth. It does not include foreign diplomats, who enjoy sovereign immunity, and foreign military invaders, who are supposed to obey the laws of war. By the circular restrictionist logic, illegal immigrants could not be prosecuted for committing crimes because they are not U.S. citizens.
Members of the 39th Congress forcefully debated birthright citizenship, with opponents arguing it would benefit the ethnic targets of the day—Indian tribes, Chinese laborers building the railroads, “gypsies.” They did not prevail. In 1898 the Supreme Court confirmed the Amendment’s original meaning in Wong Kim Ark, which recognized the citizenship of a San Francisco-born man of Chinese descent, and it reaffirmed this understanding as recently as 1982 in Plyler v. Doe.
If the candidates are as committed to the Constitution and the rule of law as they say they are, then they should propose a constitutional amendment on birthright citizenship. Refresher: This requires a two-thirds majority vote of both houses of Congress and ratification by 38 states. Getting Mexico to pay for a wall along the Rio Grande is more plausible.
By the way, the conservatives who say a President should challenge the Fourteenth Amendment unilaterally are promising a GOP version of President Obama’s “illegal executive amnesty.” Maybe they can also tell us which five Justices they think will uphold such an order.
But then the futility of ending birthright citizenship is part of the cheap political appeal. Republicans can pose as McGruff the Border Crime Dog, signal that they are also mad as hell, and slipstream on Mr. Trump’s poll numbers.
The Trumpians claim birthright citizenship is a magnet for foreign nationals and pregnant tourists. No doubt there’s some of that, but most people immigrate for better opportunities and want to join and contribute to U.S. society. The American project has always included the promise of immigrant opportunity along with assimilation, whatever a person’s origins or genetic heritage.
The children of the Algerian Muslims living in the Paris banlieus would not identify as French and the French wouldn’t accept them as French if they did. Same for the underclass of Zainichi Koreans in Japan.
This debate amounts to a lecture that some people are not real Americans and have no right to be. The immigration hawks are correct that birthright citizenship is unusual among nations, but since when did Republicans dump their belief in American exceptionalism?