Posted on 08/24/2015 6:10:42 AM PDT by SeekAndFind
Birthright citizenship has exploded into the national discourse. The issue is generating a lot of heat on the Republican side of the aisle in particular, because it threatens to expose the long-standing rift between the party’s base and its pro-crony-capitalism establishment.
Unfortunately, in arguing that the 14th Amendment requires citizenship for the children of illegal immigrants, some of the more prominent interlocutors are promoting an incorrect understanding of history. The Wall Street Journal’s recent editorial on the matter is a case in point, and my good friend John Yoo’s NR essay repeats one of the same basic flaws.
The first clause of the 14th Amendment provides that “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 Journal thinks the meaning is “straightforward”: “Subject to the jurisdiction” covers everyone born on U.S. soil (except the children of diplomats and invading armies), because “‘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 then states: “By the circular restrictionist logic, illegal immigrants could not be prosecuted for committing crimes because they are not U.S. citizens.”
Professor Yoo makes the same claim (absent the ad hominem word “restrictionist”): “Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment.”
This claim plays off a widespread ignorance about the meaning of the word “jurisdiction.” It fails to recognize that the same word covers two distinctly different ideas: 1) complete, political jurisdiction; and 2) partial, territorial jurisdiction.
Think of it this way. When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a “temporary sojourner,” to use the language employed by those who wrote the 14th Amendment, and not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment.
The same is true for those who are in this country illegally. They are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the 14th Amendment as a precondition for automatic citizenship. It is just silliness to contend, as the Journal does, that this is “circular restrictionist logic” that would prevent illegal immigrants from being “prosecuted for committing crimes because they are not U.S. citizens.”
Moreover, contrary to Professor Yoo’s contention, the text elsewhere in the 14th Amendment supports this distinction. Unlike the Citizenship Clause, which uses the phrase “subject to the jurisdiction,” the Equal Protection Clause bars a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.) The phrase “within its jurisdiction” is territorial, whereas the phrase “subject to the jurisdiction” is political.
There were no restrictions on immigration in 1868 when the 14th Amendment was being drafted and ratified, so there was no debate on whether the Citizenship Clause confers automatic citizenship on the children of illegal immigrants. But we do have debate on the analogous circumstance of Native Americans who continued to owe allegiance to their tribes. One senator — exhibiting the same confusion today exhibited by the Journal — asked Senator Lyman Trumbull, a key figure in the drafting and adoption of the 14th Amendment, whether Indians living on reservations would be covered by the clause, since they were “most clearly subject to our jurisdiction, both civil and military.”
Trumbull responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “not owing allegiance to anybody else.” And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now” — that is, under the 1866 Civil Rights Act, which the 14th Amendment was intended to codify. That act made the point even more clearly: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” (Emphasis added.) As the debate over the 14th Amendment makes clear, the shift in language from the 1866 Civil Rights Act to what became the Citizenship Clause of the 14th Amendment was not intended to provide citizenship to the children of illegal immigrants, but rather to shift away from the “not subject to any foreign power” language out of recognition that the Indian tribes were not foreign powers but domestic (albeit dependent) powers. As Senator Howard explained, the Citizenship Clause excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
The leading treatise writer of the day, Thomas Cooley, confirmed this was the understanding of the 14th Amendment. As he wrote in his treatise, The General Principles of Constitutional Law in America, “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”
When the Supreme Court first addressed the Citizenship Clause in the 1873 Slaughterhouse Cases, both the majority and dissenting opinions recognized this same understanding. The majority in that case correctly noted that the “main purpose” of the clause “was to establish the citizenship of the negro” and that “the phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” (Emphasis added).
That language in Slaughterhouse was dicta (a comment not strictly relevant to the decision), but it became holding a decade later in the 1884 case of Elk v. Wilkins. The Supreme Court held in that case that the claimant — a Native American born on a tribal reservation — was not a citizen because he was not “subject to the jurisdiction” of the United States at birth, which required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Elk did not meet the jurisdictional test because, as a member of an Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States. Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,” “they were alien nations, distinct political communities,” according to the Court, thereby making clear that its holding was about allegiance and not the reservation’s geographic territory. Then, drawing explicitly on the language of the 1866 Civil Rights Act from which the 14th Amendment was drawn, the Court continued: “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.”
Professor Yoo is therefore simply mistaken in his claim that “the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory.” In fact, it has never held that the children born on U.S. soil to parents who are in this country illegally are citizens. In the 1898 case of Wong Kim Ark, the Court simply held that a child born of Chinese immigrants who were lawfully and permanently in the United States — “domiciled” here, to use the Court’s phrase — was a citizen. Language in the opinion that can be read as suggesting that birth on U.S. soil alone, no matter what the circumstances, confers automatic citizenship is pure dicta, because no claim was at issue in the case other than whether the child of lawful, permanent residents was a citizen.
Professor Yoo’s contention to the contrary overlooks the Court’s use of the word “domiciled” in describing the nature of Wong Kim Ark’s relationship to the United States. “Domicile” is a legal term of art; it means “a person’s legal home,” according to Black’s law dictionary, and is often used synonymously with “citizenship.” Wong Kim Ark’s parents were not allowed to become citizens because the U.S. had entered into a nefarious treaty with the Emperor of China that refused to recognize their natural right to emigrate, but they were “domiciled” in the United States, which is to say, lawfully present in the United States. The holding of the case, as opposed to its broader dicta, does not mandate citizenship for children born to those who are unlawfully present in the United States, and it does not even mandate citizenship for those who are visiting the United States temporarily but lawfully. In both cases, the children, through their parents, retain allegiance to their parents’ home country — to a “foreign power,” to return to the language of the 1866 Civil Rights Act. They are therefore not “subject to the jurisdiction” of the United States in the way intended by the 14th Amendment, and therefore not automatic citizens.
As I said, no Supreme Court case has held otherwise. Wong Kim Ark did not so hold. Neither did Plyler v. Doe in 1982, contrary to the Journal’s assertion; the relevant language in that case is simply a footnote for comparison with the Equal Protection Clause, and pure dicta.
Professor Yoo’s description of the debate between Senators Cowan and Conness likewise misses the point. Cowan asked whether the Citizenship Clause would confer citizenship upon the children of Chinese parents who were living in California, or the children of Gypsies living in Pennsylvania. “Have they any more rights than a sojourner in the United States?” he asked. He was attempting to draw a distinction based on race or ethnic background, not on lawful versus unlawful presence in the United States, or even on permanent versus temporary presence. It was for that reason that Conness began his reply by stating that he failed to see what relation Cowan’s question had to do with the Citizenship Clause.
Conness then responded that automatic citizenship would be available to the “children begotten of Chinese parents in California” just as existed under existing law — that is, the 1866 Civil Rights Act, which extended citizenship to “all persons born in the United States, and not subject to any foreign power.” That guarantee was available no matter the ethnic background of the parents — we were not extending citizenship only to the descendants of white Europeans — but his response did not suggest that the children of those who were not lawfully present in the United States, or who were mere temporary visitors, would be automatic citizens. Indeed, Cowan’s own question — “Have [the children of Chinese or Gypsies domiciled in the United States] any more rights than a sojourner?” — demonstrates that he was also aware of the distinction between territorial and political jurisdiction. For the debate to support Professor Yoo’s position, Conness would have had to respond that even the children of sojourners would be entitled to automatic citizenship. There is not a hint in his response to suggest such an answer, nor in any other part of the entire debate.
So, truth be told, the 14th Amendment does not need to be repealed in order to fix the problem of birthright citizenship for the children of illegal immigrants. It just needs to be understood and applied correctly. The Journal’s contention that conservatives who insist upon this understanding of the law “are promising a GOP version of President Obama’s ‘illegal amnesty order’” could therefore not be further from the truth. Constitutional originalism requires that we give effect to the public meaning of the words actually used, even if the Wall Street Journal would wish the meaning were otherwise. And the Journal’s further contention that anyone who wishes to see the 14th Amendment faithfully applied is claiming “that some people are not real Americans and have no right to be,” is simply another ad hominem attack and mischaracterization not worthy of an otherwise great newspaper.
Finally, let me close with some agreement with Professor Yoo’s soaring rhetoric at the end of his piece, much of which is entirely true. Yes, “rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party.” And yes, “It was the Republican party that opposed Dred Scott.” And yes, “It was the Republican Party that fought and won the Civil War.” And definitely yes, “it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race.”
But the 14th Amendment did not do away with sovereignty. It did not do away with the importance of citizenship, or with the idea, rooted in the Declaration of Independence, that legitimate governments are grounded on the consent of the governed. Birthright citizenship, as currently practiced, allows those who continue to owe allegiance to a foreign power to demand American citizenship for their children, unilaterally and as a result of their illegal conduct. Those who oppose such an abuse do not support Dred Scott. They are drawing distinctions based not on race, but on the rule of law.
Professor Yoo need not worry, therefore, that applying the 14th Amendment faithfully would “discard one of the greatest attributes of American exceptionalism.” The welcome mat to American citizenship is open to anyone in the world regardless of race or ethnic background, as long as they adhere to the legal rules set out by Congress for immigration to this country.
— John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former dean at Chapman University School of Law. He also serves as the director of the Claremont Institute’s Center for Constitutional Jurisprudence.
And this has been going on for a long time. Most of it started with Roosevelt appointees, but it was happening a long time before that as well.
And it was a very stupid amendment. At best, it should only have applied to people serving in the armed forces. It never should have given those hippie draft-dodgers more power.
I have not seen a response from him since I asked about the citizenship status of his Children. The Silence. has. been. deafening.
One would think Captain Misinformation would be falling all over himself to attempt to counteract all the articles about the correct meaning of the 14th amendment, yet... crickets...
Not that I'm complaining, mind you. :)
The 26th Amendment (to lower the voting age) whipsawed through the states like a Category 5 hurricane. About three months after it was introduced into Congress, the 26th was US law.
Given the current national furor, an amendment to ditch anchor babies would enjoy a similar victory.
How many state legislatures do Republicans control? What percentage have to pass this? You're right - this could be easy.
“those in the country illegally (whether domiciled or not)”
This comment and others you made indicate you didn’t even read this essay by Eastman.
I suspect that you are one of those who thinks "I'd vote to end birthright citizenship. So would the people I know, and the people I discuss things with online. So would the presidential candidate I support. It would be a slam dunk!!"
You need to get out of the echo chamber, and check out the rest of the country for a few days.......
Lawyers are an overrated bunch. You're correct Gray did not hold that anchor babies by illegal aliens on US soil as citizens.
“I might add, if they do not get on the vessel of conveyance, discretionary applications of non-existence might be in order.”
Why should they have a vessel of conveyance?
We could have them running for the border of their own volition.
Sample legislation.
A person found within the United States, having entered illegally, shall:
1. Receive fifty lashes on the back with a cat o’nine tails.
2. Be branded on both cheeks with the letter “B” for “border crasher,” said brand to be two inches tall.
3. Forfeit all monies and properties earned or amassed in the United States, wherever located.
4. Walk from where apprehended to the Mexican border on a diet of beans and tortillas, sleeping in the open.
6. On their journey, ejectees shall pick up trash, cut grass with scythes and other unpowered tools, trim roadside shrubbery, clean rest area toilets, and perform such other tasks as may be ordered, said tasks not to be unduly hazardous.
7. Any person seen with the letter “B” branded on the cheeks who is not a member of a guarded ejectee party may be shot and killed on sight by any U.S. citizen at any time.
8. Idiots may offer ejectees food and water if they like. The penalty for providing ejectees with arms or assisting them to escape shall be death by firing squad, following a guilty verdict in a trial to be conducted by three officers of the U.S. military.
9. Any attempt to bribe a guard is punishable by death, following a guilty verdict in a trial to be conducted by three officers of the U.S. military. A bribe can be monetary or in the form of goods and services, especially including carnal services.
10. Any guard accepting a bribe shall be executed by hanging following a guilty verdict in a trial to be conducted by three officers of the U.S. military.
12. After the great majority of illegal aliens have been ejected, two fences 20 feet tall and 50 feet apart shall be erected on the Mexican side of the border. The area between the fences shall be heavily planted with anti-personnel mines. Motion-sensor-activated machine guns shall be emplaced in such a way as to cover the entire area between the fences with interlocking fields of fire.
13. The President of the United States shall, before the UN General Assembly, tell the President of Mexico to kiss his ass.
14. The organization known as “La Raza” and all similar groups are hereby designated domestic enemies of the Constitution. Active membership in such organizations shall be punished by death.
Announce that and see how long it takes them to self-deport.
My approach is to simply repeal an existing act, the one which bestowed citizenship on Indians in the first place.
Now that I think about it, we don't even need to replace it. All current Indians in our borders are already American Citizens, so the act no longer serves any purpose.
We can repeal it now, and it won't even affect American Indians, it will only affect Mexican/Central/SouthAmerican and Canadian Indians.
My point here is, What is the court going to say to that? You can't argue it's Unconstitutional because it has an established history. It would be too great a departure from the truth for even the lyingest of courts, I hope.
It would be using the explicit words of the 14th against the Courts, and they can hardly say the "penumbra of equality" they see in the 14th can override the clear and explicit words denying such citizenship.
If you say so. Not that my reading of the OP is important or even relevant, I did read it. That Eastman conditions domicile on legal presence doesn't mean a court will.
Too bad we can’t throw out several dozens judges off the bench to let them do honest work.
Yoo stroking O'Reilly's ego the other day said something to the effect that 'they want to take us back to the days Dred Scott' by doing away with "birthright" citizenship. LoL.
Yeah sure idiot.
OK, so I’m full of crap.
Please outline for me your idea about HOW the end of birthright citizenship can be accomplished without a constitutional amendment. I’m not taking sides on the legal question of who is right about the meaning of “subject to the jurisdiction of”, I want to know exactly HOW your vision of things can proceed to a successful conclusion (and, while you’re at it, please define “success”).
The law (and the courts) consider intent when determining a person's domicile, which can be different from his residence. The author cites the Black's Law Dictionary definition but ignores the critical legal requirement of intent applied therein.
According to Black's, residence signifies living in a particular locality while domicile means living in that locality with the intent to make it a fixed and permanent home.
Wong Kim Ark has significant deficiencies. Those who haven't studied it at length will find that citing it in defense of one's position can be problematic. Ask anyone on either side of the Obama "birther" debate.
The Supreme Court knows there is no stare decisis by SCOTUS holding anchor babies as US citizens.
Or Brennen in 1982 would not have go cite in a lame footnote about some author’s opinion from the early 20th century if Gray held the same in the WKA opinion.
Two questions:
1) Do you believe Congress has the power to revoke YOUR citizenship? If so, why, if not, why not?
2) What are the chances that any Congress bought and paid for by the Cheap Labor Express will ever enact such a statute?
Republican control of a legislature makes it pro-illegal immigration.
The same is true for those who are in this country illegally.
I think the law professor is entirely wrong about this as it relates to illegal aliens. They are subject to our conscription laws, and if domiciled here they can be convicted of treason.
An EO from the President pursuant to the Supreme Law of the Land.
Yes, since Trump commandeered the GOP half of the nomination process, birthright citizenship/anchor babies are finally getting the spotlight they need and require. But no, I hadn’t noticed the absence of a certain obot troll. If your question had nothing to do with his disappearance, then that is one amazing coincidence.
I was hilariously entertained, however, when one of the other obot trolls stepped into the birthright citizenship debate...and got his butt handed to him on a platter.
What happened was, he tried the old, ‘if they weren’t subject to our jurisdiction, we couldn’t deport them,’ routine. The respondent came back with, ‘if a pregnant woman breaks into your house and gives birth, are she and her baby now full members of your household/family, with all the rights and privileges thereof?’
The thread heard no more from said troll. To no one’s regret.
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