President Trump made an encouraging remark yesterday about the possibility of ending the nation’s lunatic policy of granting U.S. citizenship to any child whose mother managed to get her uterus onto American soil, by any means whatever, before giving birth.
“We’re looking at that very seriously, birthright citizenship,” the president said. It seems he is considering revoking the policy, at least as it applies to “birth-tourists” and illegal aliens, by executive order — which should be perfectly within his Constitutional powers, as the policy of giving away citizenship in this way originated not in any act of Congress, but in the Executive Branch’s Department of State.
The reaction from the Left has been just as you’d expect. Laurence Tribe Tweeted that “This fuxxxng racist wants to reverse the outcome of the Civil War, for God’s sake.” Kamala Harris suggested that Mr. Trump “should ‘seriously’ consider reading the Constitution.”
Well, what does the Constitution say? Both Tribe and Harris are referring to the post-Civil-War Fourteenth Amendment, the purpose of which was to confer full citizenship on former slaves and their children. It says this:
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.
The key is that qualifier “and subject to the jurisdiction thereof”, which was inserted to distinguish between former American slaves and those aliens and visitors who were the subjects of an external sovereignty. To imagine that the framers of this amendment, or those who ratified it, ever intended it to apply to any pregnant woman who manages to sneak across our borders, or to a Chinese national who pays a visit to the Northern Marianas a day before delivering her child, is, in the etymologically literal sense of the word, preposterous — it reads a (still controversial) opinion of the present day into the deliberations of the past — and I’m sure that both Mr. Tribe and Ms. Harris know it. In their hands the Fourteenth Amendment is simply another bayonet on the political battlefield; a weapon they have picked up from the wounded body of the enemy.
For a more detailed look at the issue, read this.
Mr. Trump should make the executive order, and let the courts have a go at it. Truth, justice, and history are on his side.
5 Comments
The natural reading suggests two conditions are necessary (with the first condition having two options):
1) either (a) born in the US or (b) naturalized in the US, and
2) subject to the jurisdiction of the US.
Still fuzzy on what it means to be “subject to the jurisdiction of the US.”
Would the child of a permanent resident born here be a US citizen by birth? I would argue yes.
A temporary resident? Probably not, but I suppose some argument could be made they are subject to US jurisdiction during any legal temporary residence.
Someone here visiting? Most likely not – they are not filing any tax return here or taking up residence in any meaningful sense.
Illegally here (whether by illegal entry or expiration of other status)? I would have to say no.
Truth, justice, and history are on his side.
But are enough of the Justices (sic) on his side?
c matt,
I agree with your analysis. I think the current Court would too.
I think perhaps the writers of the amendment in that it was an amendment rather than mere statute employed the “subject to the jurisdiction of the US” very deliberately.
As I recall, but I may be wrong, incorporation of The Bill of Rights into state constitutions didn’t begin until sometime in the latter years of Reconstruction.
Admitting no diligent reading hereon but I seem to be beginning to glean why the jurisdiction bit at May 8, 1866.
https://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/congress-debates-fourteenth-amendment-1866
I want to make a horse/barn door analogy: maybe so many horses are now in the barn, the thing is about to crumble and be carried away by a surfeit of bodies.
Jurisdiction for purposes of bestowing citizenship, which I would make really, really narrow. No citizenship unless explicitly bestowed.