Originalism and Birthright Citizenship
Republicans have long proclaimed their belief in constitutional originalism. Like low taxes, it’s become a mantra, but one wonders how serious they are. Originalism has consequences, and if embraced, a large part would involve undoing court-created rights that have restrained the political branches, particularly the states. Another large part would require scaling back the federal welfare state, which goes far beyond the boundaries of regulating interstate commerce. Contrary to critics, originalism would also allow ending the accidentally created right of birthright citizenship under the 14th Amendment.
Trump Is Serious About Originalism
Donald Trump, for all the claims that he is undoing historical limits on the presidency, is in fact an unironic originalist operating well within the constitutional mainstream. While not an attorney, he is old enough to remember when things were not the way they are now. Trump’s nostalgia for the “great” America of the past forms his lodestar, which stands out sharply from the general undoing of America’s norms since the social revolution of the 1960s and ’70s.
His appointments to the Supreme Court—Neil Gorsuch and Brett Kavanaugh—conformed to his promise to name justices in the mold of Antonin Scalia, and have muted the criticism he was a closeted Democrat unserious about traditional Republican concerns. Further, his expression of a robust, tangible American national identity—including the right to control the country’s borders and to say who may and may not be admitted to citizenship—addresses the most pressing threat to our national unity and the health of our political institutions.
Proving he is ever the master of the news cycle, Trump displaced the suspiciously timed pipe bomber and the maniac Pittsburgh synagogue shooter from the news by proposing he was prepared to issue executive orders ending birthright citizenship. This became the story.. The media, as one would expect, were apoplectic, and suddenly every 3.0 GPA telecommunications major became a constitutional scholar. This order would be unconstitutional and the end of the republic, we were told. Apparently, legions of illegal immigrants and a robust birth tourism industry have become central to American life.
Trump’s critics, however, were not only to be found on the left. Outgoing House Speaker Paul Ryan (R-Wis.) said, “You cannot end birthright citizenship with an executive order. . . . We didn’t like it when Obama tried changing immigration laws via executive action, and obviously as conservatives we believe in the Constitution.”
Indeed, we do.
The 14th Amendment Does Not Mandate Birthright Citizenship
Well established precedent, the debate on the 14th Amendment, and common sense all weigh in favor of President Trump’s proposed executive order, as I have written previously. Chapman University constitutional lawyer John Eastman has also argued that birthright citizenship is not the most natural or originalist reading of the post-Civil War-era 14th Amendment, which was designed to secure civil rights and citizenship to the newly freed slaves. The relevant text is straightforward: “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.”
Some conservatives, including now-Judge James Ho, have argued that the use of the phrase “subject to the jurisdiction thereof” should be given its ordinary broad meaning as including anyone under the authority of the government and obliged to follow its laws. Jurisdiction is a familiar concept in the law, no doubt, but this does not appear the best reading of the phrase in context, as near contemporaneous precedents suggest.
While some have dismissed the 1884 precedent of Elk v. Wilkins as sui generis because it addressed the citizenship of Indians—who were at the time treated as quasi-foreign nations whose rights were controlled by treaties and not like ordinary American citizens and aliens—the language of the decision is instructive. In Elk, the petitioner was an American Indian who had moved to Omaha, Nebraska, and assimilated among American citizens, although he did not formally apply for U.S. citizenship. There is no doubt while living in Omaha he was obliged to follow the laws of the United States and was subject to its jurisdiction, in the same manner as a foreign tourist or green card holder today. Nevertheless, his claim of citizenship—premised on having been born in the United States and otherwise observing its jurisdiction—did not justify his claim of citizenship.
As the court held, “[t]hough the plaintiff alleges that he ‘had fully and completely surrendered himself to the jurisdiction of the United States,’ he does not allege that the United States accepted his surrender or that he has ever been naturalized, or taxed, or in any way recognized or treated as a citizen by the State or by the United States.”
In the debates over the 14th Amendment, Senator Jacob Howard of Michigan acknowledged that the amendment recognized the existing law of citizenship, and “[t]his 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.”
A common originalist interpretation of the 14th Amendment is that it was designed to protect the Civil Rights Act of 1866 from an adverse court ruling. Congress wrote the 1866 law to prevent newly freed slaves from being reduced to second class status by recalcitrant southern legislatures. The Elk decision noted that the Civil Rights Act of 1866 declared protection for “all persons born in the United States, and not subject to any foreign power,excluding Indians not taxed.” In other words, “subject to the jurisdiction” and “not subject to any foreign power” were treated as synonymous concepts at the time of the 14th Amendment’s ratification.
Even the famous case of Wong Kim Ark, from which birthright citizenship proponents gain much of their confidence, noted that the other branches had failed to weigh in on the matter, and thus the Supreme Court was required to rely upon common law principles to resolve the question of birthright citizenship. Notably, too, the petitioner in that case was born in the United States to legal aliens who were subjects of China.
Democrats Used to Know the President Has Substantial Authority Over Immigration
Trump’s proposed executive orders are controversial, but they should not be as a constitutional matter. Does anyone remember Elian Gonzalez? His capture by armed federal agents and repatriation to Cuba was a major controversy in 2000. Janet Reno, Bill Clinton’s attorney general, argued in favor of nearly unreviewable discretion by the executive to determine Gonzalez’s status.
Making Trump’s claims of executive authority appear weak in comparison, the government’s brief in the Gonzalez case is full of gems. Janet Reno’s Department of Justice argued that “judicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’“The brief stated further, “[t]he Supreme Court’s recognition of immigration law as occupying a unique status for purposes of judicial review dates back more than a hundred years” and that “[o]ur cases ‘have recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’“ . Finally the Justice Department quoted again from the court’s 1999 ruling in INS v. Aguirre-Aguirre: “The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.”
In short, while there are limits to executive orders, ample precedent exists for substantial executive control over immigration, particularly when the precedent is mixed, interwoven with unnecessary dicta, and contrary to the original intent of the Congress, as revealed in its ratification debates over the 14th Amendment.
One wonders if the supposed originalists have ever noticed the Constitution grants Congress the authority to “establish an uniform Rule of Naturalization . . .. ” Do they worry about Supreme Court precedents that deviate greatly from our historical understanding of “equal protection” to the point of requiring the government to provide “equal benefits” such as Medicare and public schooling to illegal aliens? Even if there may be some debate on the propriety of an executive order on birthright citizenship, the Constitution contemplates that the various gray areas of citizenship, naturalization, and special cases, like birth in the United States to temporary visitors who owe no allegiance to the United States, can and should be resolved by the political branches, ideally through legislation.
Immigration Laws Should Evolve With the Times
A nation’s circumstances and priorities change. While we do not have a living Constitution, we do have a living set of laws. The Constitution contemplates that laws and enforcement priorities will vary substantially from time to time. Far from being a prism through which the right policy answer can be found for any controversy, the Constitution is silent on a great many subjects, and the political branches—the legislature and the executive—are commissioned with divining good policy and reconciling such policies with public sentiment.
A nation’s circumstances and priorities change. While we do not have a living Constitution, we do have a living set of laws. The Constitution contemplates that laws and enforcement priorities will vary substantially from time to time. Far from being a prism through which the right policy answer can be found for any controversy, the Constitution is silent on a great many subjects, and the political branches—the legislature and the executive—are commissioned with divining good policy and reconciling such policies with public sentiment.
The right level and quality of immigration is a quintessentially political question. When America had a frontier and a need for large numbers of unskilled laborers, immigration was less burdensome and arguably more necessary. But even then, it was a matter rightly decided politically. A court-created “birthright” citizenship removes an important political issue from political control and the input of concerned citizens.
Illegal immigration is amplified by birthright citizenship, which allows the children of immigrants to become citizens and then, in turn, to sponsor their parents and relatives under the ill-advised provisions of U.S. law allowing for family reunification. These are the so-called “anchor babies.” While family reunification should be a low priority, this is a statutory matter.
On the other hand, the initial provision of citizenship to the children of illegal aliens—the first link in the chain that is “chain migration”—is not called for by statute or the language of the 14th Amendment, properly understood.
As the Supreme Court observed in Elk, legality and consent of the governed loom large in the question of when and how immigrants may become citizens of the United States: “[A]n emigrant from any foreign State cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required by law.”
Unlawful immigration (particularly with foreign flags waving proudly) does not imply any such renunciation. More important, without formal naturalization by the United States, illegal aliens are mere trespassers and interlopers, whose disrespect for our laws and institutions bodes ill for good citizenship more generally.
If someone marched into your home and squatted, he would not become your family member entitled to an inheritance. Our greatest inheritance as Americans is our country, its resources, its Constitution, and its people. This inheritance, too, should be preserved jealously, and Trump’s efforts to do so deserve our applause.
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