The 14th Amendment

800px-donald_trump_official_portraitPresident Trump recently announced that he was looking into issuing an executive order stating that the Fourteenth Amendment does not confer citizenship to individuals born here to people who are not legally here. This has long been wanted by nationalists and immigration restrictionists, who want to stop the prospect of anchor babies, where legal and illegal aliens give birth on US soil, in order to gain their children citizenship and then help legalize the rest of the family. The announcement caused the usual uproar from all parts of the political space, most claiming that the President can not change the Constitution.

Unfortunately, for these complaints, the President is not changing the Constitution, he is interpreting it. This will, of course, lead to lawsuits and the issue will be adjudicated up to the Supreme Court, which will determine whether the interpretation is correct. While the Court has ruled on aspects of the 14th Amendment, but it has not ruled on the key phrase “subject to the jurisdiction thereof”. Let us look at the Amendment:

Section 1. 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.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

It is interesting how we have gone from simple amendments in the original ten plus two, to complicated multi-section amendments. The intent of the amendment at the time was to resolve the problem of freed blacks being denied State citizenship and rights, and consequently US citizenship and rights. The inclusion of the phrase “and subject to the jurisdiction thereof” has to have been deliberate. What it means, is, like many parts of the Constitution, subject to interpretation. It never has been resolved. This is in fact absolutely a matter for the Supreme Court to decide, unlike many cases that are political questions (Obamacare). It is a legal question requiring a legal interpretation. What exactly does that phrase mean?

One of the writers, Senator Jacob Howard of Michigan offers some insight:

This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

No one seems to dispute that an ambassador having children here does not confer citizenship. That is what “subject to the jurisdiction thereof” must mean. Since the laws are applied to illegal immigrants and visitors, they must be subject to jurisdiction. And if they are not, they can not be illegal, and apparently cannot commit any crimes and have free reign. It is not clear that this is what the phrase actually means. When looking at the Howard quote, one person suggested to me that the parts “foreigners, aliens” is just emphasizing what the diplomats are. This is absurd on its face and there is no reason to build in so much redundancy. It most likely is pulling out four classes of people who cannot have birthright citizenship conferred upon their children.

It is also worth noting that “Indians” were excluded from birthright citizenship as long as they still held tribal loyalty. At least until the Indian Citizenship Act of 1924, which applied it to them, regardless of tribal affiliation. This suggests that being born here does not mean you get citizenship. One could argue they aboriginal peoples are a special case, but it helps open the question.

A case commonly cited is that of Chinese Wong Kim Ark, who was born here, left, and then tried to return, but was denied entry under the Chinese Exclusion Act. It was ruled that he must be allowed in because he was a legitimate citizen by birth. The key is, his parents were here legally residing. The question of whether visitors (nonresident legal aliens) and illegal immigrants (illegal aliens) can give birth here and their children receive citizenship has never been adjudicated. It will soon. The president seems set to issue the executive order, and Senator Lindsay Graham, formerly a moderate and immigration proponent, now wants to introduce a bill. Both will obviously and rightly be challenged.

The case might not reach the Supreme Court before Trumps reelection, which will add some intrigue. If Ruth Bader Ginsburg retires or dies before then, and is replaced with a conservative, the decision could go 6-3. The Court, as it stands, has a good chance to make it 5-4 in favor of restricting citizenship. While Roberts and Gorsuch might be held up as swing votes, they do seem to be conservative in areas like this. Roberts ruled for Obamacare because he found ways to make it legal, but invalidated parts of it, and was not pleased with it. However, he felt it was better resolved in Congress. Gorsuch recently made the majority in an illegal immigrant deportation case, but his principle was the law was too broad and vague. In a case here, the two are likely to go to their roots and explain the intent of the Amendment is to prevent discrimination against those legally resident, not to allow anyone to come here for a day and give birth.

We wont know until it reaches there, but the process is beginning. While libertarians seem apoplectic about this proposal, it must be reiterated Trump is not changing the amendment, he is interpreting it, just like they are. Yes, saying its an open door is an interpretation. The Amendment is not at all clear. Second, libertarians ought to be wary, as I have stated before, of open immigration. We still have a welfare state and we still have elections. We have enough statists and socialists as it is. We do not need any more influencing our country. Regardless, it warms my heart to see such vigorous debate over the Constitution. We would do well to have more of that.

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