On Citizenship, the ‘Birthers’ Are Right: Constitution, Tradition, favor Birthright Citizenship

National Review ^ | 08/22/2015 | John Yoo

[SeekAndFind]

Donald Trump stoked the immigration fires that are burning up the Republican party by proposing an end to birthright citizenship. This week he claimed that children of aliens who are born on U.S. territory “do not have American citizenship” and that their right is “not going to hold up in court.”

Trump’s argument runs headlong into the Constitution. His proposal shows, once again, that while he may be running as a Republican, he is not running as a conservative. Conservatives believe in following the Constitution’s text, as understood by those who wrote and ratified it and with due regard for the course of American history and traditions. They reject the notion of a living Constitution whose meaning can change to fit the popular demands of the moment.

Trump’s proposal to end birthright citizenship can survive only with a plastic, malleable Constitution. Those who just two months ago decried the Supreme Court’s imposition of same-sex marriage throughout the nation should be the first to reject Trump. His eagerness to read native-born children out of the Fourteenth Amendment smacks of the same liberality toward the Constitution which afflicted the Supreme Court in Obergefell v. Hodges. The text, structure, and history of the Constitution all show that the 14th Amendment recognizes the citizenship of any child born on American territory.

First, the constitutional text. Section One of the 14th Amendment states: “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 constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.

Congress drafted and sent the amendment to the states for ratification not to change the definition of citizenship, but to affirm American practice in effect ever since the Revolution. While the original Constitution mentions citizenship as a requirement for federal office, it does not define it. Borrowing from the English common law (which admittedly defined subjects rather than citizens), the United States has always filled this gap by following jus solis (citizenship defined by soil, i.e., birthplace) as opposed to jus sanguinis (citizenship defined by blood, i.e., citizenship of the parents).

Trump and his supporters (including some writers for National Review) may draw support from the phrase “and subject to the jurisdiction thereof.” Some have argued that this language must exclude the children of aliens from citizenship, because aliens owe allegiance to another nation and hence are not under “the jurisdiction” of the United States. But the constitutional text requires only that the children born in the United States fall subject to American jurisdiction, which means that they are governed by American law. 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. Other uses of “jurisdiction” in the Constitution, such as in the 13th and 14th Amendments, also refer to the power to govern by law, not national allegiance.

Instead, “subject to the jurisdiction thereof” refers to certain discrete categories of people excluded from citizenship, even though they might be born on U.S. territory. These include the children of diplomats and enemy soldiers at war who are occupying territory. These individuals could be on U.S. territory, but are not subject to U.S. law. A third and obvious category was American Indians. At the time of the 14th Amendment, American Indians were still considered semi-sovereigns who governed themselves with their own laws and made treaties with the United States. But “subject to the jurisdiction thereof” did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship. Instead, the phrase recognized a few narrow exceptions to the general principle of birthright citizenship that has prevailed throughout American history.

Second, constitutional history. There is only one blemish on the American tradition of birthright citizenship: Dred Scott v. Sanford (1857). In that notorious case, Chief Justice Roger Taney led a majority of the Supreme Court in striking down the Compromise of 1850, which limited slavery in the territories. Taney found that slaves were property and they, and their children, could never be citizens, even though born in the United States. Dred Scott helped precipitate the tragedy of the Civil War by preventing Congress from limiting the spread of slavery and reaching a compromise between North and South. Section One of the 14th Amendment directly overruled Dred Scott’s selective grant of citizenship to some races but not others.

The universal nature of birthright citizenship was made clear in the amendment’s drafting history. During congressional consideration, critics argued that the text would recognize as citizens the children of aliens. In particular, these opponents wanted to allow the western states to “deal with [the Chinese] as in their wisdom they see fit.” Senator Edgar Cowan of Pennsylvania asked: “I am really desirous to have a legal definition of ‘citizenship of the United States.’ What does it mean?” Cowan asked: “Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?”

Supporters of the 14th Amendment agreed with Cowan’s reading, even though it may have lost votes for their proposal. Senator John Conness of California replied to Cowan: “The provision before us . . . relates to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so.” Conness would lose his Senate seat because of his defense of the rights of Chinese immigrants, but the amendment would go to the states for ratification on the understanding that it granted birthright citizenship to the children of aliens.

Third, Supreme Court precedent. Ever since ratification of the 14th Amendment, the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory. The Supreme Court’s reading of the Constitution does not automatically bind the other branches of government or the people — that is another lesson of the Civil War. Abraham Lincoln, for example, rose to prominence by attacking Dred Scott and pledging not to enforce the opinion beyond the parties to the case. But this is one decision of the Court with which he would have agreed.

In United States v. Wong Kim Ark (1898), the Supreme Court faced the birthright-citizenship question directly. Ark involved a child born to Chinese parents in San Francisco. The child left the United States for a trip but was barred from returning to the United States under the Chinese Exclusion Act. While the parents remained Chinese citizens, the child claimed U.S. citizenship under the birthright reading of the 14th Amendment. The Supreme Court upheld the child’s citizenship by virtue of his birth in San Francisco. While Congress could block immigration entirely or control the process of naturalization, it could not alter the right of citizenship for all born within American borders.

The Court read the 14th Amendment to recognize the existing American practice of granting citizenship based on birthplace. It saw no support for a new exclusion of the children of aliens. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” The Justices explained that the phrase “and subject to the jurisdiction thereof” only codified the existing exclusions for children of “alien enemies in hostile occupation,” “diplomatic representatives of a foreign state,” and “members of the Indian tribes.” Only these categories “had been recognized exceptions to the fundamental rule of citizenship by birth within the country.” The Court explicitly rejected the claim made today by some that aliens, because they owed allegiance to a foreign nation, were not within “the jurisdiction” of the United States. Instead, the Court concluded that the amendment “in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”

The Supreme Court has never seen fit to question its original judgment in Wong Kim Ark. In this case, unlike others (such as Obergefell), the Supreme Court read the constitutional text, structure, and history exactly right.

Of course, the American people can always amend the Constitution to change the principle of birthright citizenship. Putting to one side the waste of time and resources entailed, amending the Constitution would be a sorry mistake. Rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party. It was the Republican party that opposed Dred Scott. It was the Republican party that fought and won the Civil War. And 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. If we are to discard one of the greatest attributes of American exceptionalism, let it be the handiwork of nativist Democrats and candidates who appeal to the lesser angels of their nature.

— John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. A former Bush Justice Department official, he is the author, most recently, of Point of Attack: Preventive War, International Law, and Global Welfare.

[Kid Shelleen]

Noted legal scholars Mark Levin, John Eastman, and 14th Amendment expert Professor Edward Erler disagree, not to mention the author of the citizenship clause Sen. Jacob Howard of Michigan, who expressly said: “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.”

http://humanevents.com/2010/08/04/justice-brennans-footnote-gave-us-anchor-babies/

[Petrosius]

Conservatives believe in following the Constitution’s text, as understood by those who wrote and ratified it and with due regard for the course of American history and traditions. They reject the notion of a living Constitution whose meaning can change to fit the popular demands of the moment.

The constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.

Then shall we see what the author of the amendment actually meant? From the floor speech of Senator Jacob Howard (R-MI) who actually wrote the amendment:

Every person born within the limits of the United States, and subject to their jurisdiction is, by virtue of natural law and national law, a citizen of the [United States]. 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.

The Court read the 14th Amendment to recognize the existing American practice of granting citizenship based on birthplace. It saw no support for a new exclusion of the children of aliens. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.”

In U.S. v. Wong Kim Ark his parents were legal residents. No one is arguing against these. The question is that of those here illegally, i.e. those who are legally not residents. By law they are merely transient aliens, not residents. The precedent of the Kim case does not apply.

[tophat9000]

To the fool.who wrote this the 14 its states

“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.

birthright citizenship would be

“All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.

the debate is the clause

“, and subject to the jurisdiction thereof,

... whose jurisdiction do you belong to? ......see "illegal work both ways... because if your illegally you're still subject to the jurisdiction of your old country....your other country would have no say so about you....

let take the draft.... let's say both the United States and Mexico institute a draft for the military and they both try to draft the same person ...who gets them?

[48th SPS Crusader]

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 constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.

This plainly states just the opposite of what Woo claims. If the parents are illegal aliens then the child is not subject to the jurisdiction there of. He/she also is an illegal aliens

[Hostage]

Children of illegal aliens are subject to the jurisdiction that covers their illegal parents period no matter where they are born.

In the case of US v. Wong Kim Ark the Chinese parents were in San Francisco legally and therefore subject to the jurisdiction of the United States. Therefore, the children would be subject to their parents jurisdiction which was the United States.

Let Congress pass a law to clarify that anchor babies are not subject to US jurisdiction because their parents are not subject thereof as they are illegally in the USA for otherwise the provisions of deportation would contradict the law. If all persons illegally in the United States were subject to its jurisdiction, orders for deportation would not exist as the very act of deportation is to purposefully place a person under the person’s proper jurisdiction. Children of such deported persons would have to follow the deportees as such children are under the jurisdiction of their parents no matter where they were born.

Let immigration lawyers take it to court and progress to the US Supreme Court. If the SCOTUS once again defies the clear interest of the People and the meanings and intents of the Constitution, let hell rain down on them via emergency Article V amendments in the form of voiding and repealing their rulings by 3/5’s States Quash and by a much needed general reference amendment that greatly limits their ability to change the meanings and intents of words, terms and phrases of the Constitution to their own versions and devices. Let President Trump move to pack the Court as FDR did. Bring it all to a head.

No matter how the issue is argued, the battle must commence knowing that it ultimately leads to limits and conditions on the US Supreme Court that prevent overreach and abuse that the American People can no longer live with as free Americans.

[dila813]

NR : Anti-Rule of Law

[usurper]

Take the BCs away and throw them out.

Please don't say that, that is not what is being proposed. We are talking about policy going forward and not striping the citizenship of those who have it.

There are countless veterans who have served honorably in our armed forces, current and former law enforcement officers and countless other citizens in good standing who would be effected.

The dems and the GOPe will try to frame the argument as you have because no rational person would support such a immoral policy.

[Gaffer]

You have a difference of opinion with me about what the 14th amendment says with respect to the “jurisdiction” part.

In the case of the military veterans etc. you mention, this doesn’t conflict with “jurisdiction”.

BC as it has become applied in the last few decades involves primarily ILLEGAL candidates and beneficiaries. Those under military or other government approved paths aren’t what is specifically involved here. That’s what the “jurisdiction part” is all about. Those illegals who drop an entitlement baby here are extra-legal (outside the law - ILLEGAL) and not “under jurisdiction” in the sense the amendment stipulates. IOW, I’ve said nothing here that relates to those you are “concerned” about.

[Monorprise]

NR seems to be historically and legally challenged.
The limitations of Dred Scott were overturned by the 13th not 14th amendment.

Additionally the anthers of the 14th amendment made it very clear as did two subsequent court ruling that the 14th amendment’s ‘subject to the jurisdiction thereof’ qualification clearly prohibited citizenship by location of birth rather than parent of birth.

As federal law already repeats this qualification, all Trump and any other president need do is issue an order telling federal employees to stop treating theses foreign nationals as citizens.

[nathanbedford]

I disagree for the reasons expressed in the Virginia law review and in the discussion attendant upon it in that thread.

Prof. Yoo makes the argument and expresses the current conventional understanding of the fourteenth amendment citizenship clause and particularly the meaning of the clause, "and subject to the jurisdiction." In order to stop the current practice of issuing passports to anchor babies it is necessary somehow to get the Department of State to change its understanding of the constitutional mandate. In other words the State Department must disagree with Prof. Yoo and instead believe the argument of Mark Levin as he quotes Sen. Jacob Howard.

I remind you this constitutional amendment was passed by both houses of the federal Congress and three quarters of the state legislatures. The opinion of one man, no matter how influential in the drafting, is certainly not dispositive of determining the meaning of the amendment, although concededly it should be reckoned with. In reckoning with these words one opens up a discussion of what was the understanding in 1868 of the phrase "subject to the jurisdiction"?

The author in the Law Review article quoted above makes a compelling case that the meaning of jurisdiction in 1868 in this context was domicile and domicile equals a residence plus intent to establish a connection. He argues that this was the state of the law as well as the understanding of individuals like Sen. Howard. Why domicile? Because the matter of being subject to the jurisdiction means identifying the state to which the individual owes his allegiance and that is determined by domicile.

If this argument is persuasive, and the author has marshaled the facts and the law in a scholarly presentation, it means that children of aliens are in fact citizens when born providing their parents were domiciled. Even worse news, the fact that the parents were illegal does not affect their ability to establish a domicile here for their children who are therefore citizens by birth. However, tourism babies are not, according to the author, entitled to birth citizenship because their parents had not established a domicile.

At this point frustrated conservatives generally revert to Mark Levin citing his reference to article 1 section 8 granting Congress the power over naturalization. Naturalization is different from birth citizenship. Congress has plenary power over naturalization and, according to the Wong case, no power to redefine birth citizenship by defining domicile or playing with the rules of naturalization. Congress can always pass a law expelling aliens but it cannot redefine the fourteenth amendment.

At this point reference is usually made to the provision of the fourteenth amendment which grants Congress the power to enforce the amendment but that power has to do with enforcement against the states and not the power to redefine the amendment.

Any legislation in an attempt to cure the anchor baby problem will be vetoed by Barack Obama even in the unlikely event that we can get it through both houses of Congress and past a Senate filibuster. So nothing will happen so long as Obama has his pen. If a Republican is elected in January 2017, he can simply order the Department of State to decline to issue passports to any child born of illegal aliens whether they are domiciled or not. No doubt several states will continue to issue birth certificates but the passports will stop until the matter is adjudicated by a federal court.

That it seems to me is the quickest way to get a judicial resolution. We will see whose interpretation of the fourteenth amendment prevails. Meanwhile, beginning on January 2017 Congress and the president can pass laws expelling illegal aliens. Congress can change the rules of naturalization and tighten them up. That will have nothing to do with birth citizenship but it is a step in the right direction. Special attention should be paid to ending chain migration which is not protected by anybody's interpretation of the fourteenth amendment.

[kiryandil]

Yoo Hoo, John?

Gads, are Yoo stupid, or what?

[kiryandil]

“Tradition” is NOT “law”!

If we declare ourselves to be Democrat presidents or Democrat presidential candidates, tradition says that we cannot be prosecuted for multiple serious felonies.

Win-win!

[Arm_Bears]

Why I stopped reading NR.

[NTHockey]

As usual, the simplest answer is the best answer. Acknowledge that child is an American citizen, but parents are not. They have to go, baby stays. Solomon used a sword to find out who the real mother was. Allowing baby to stay and enjoy citizenship but no the parents forces the parents to choose between family and freebies.

[TBP]

Mr. Yoo, you are wrong. The Fourteenth Amendment does NOT mandate birthright citizenship. Congress can, and should, abolish it by statute.

[Biggirl]

Take it up with Mark Levin. He would not agree.

[semimojo]

Now, you have slip and fall lawyers, some phony constitutional lawyers, they have ‘Esquire’ after their name, they come on TV, they go all over the place, ‘Jurisdiction means geography.’

And here is where Levin loses me. He props up a straw man and doesn't address the critics' real point.

No one thinks it's just about geography. Most think "subject to the jurisdiction" means subject to the laws - an interpretation consistent with other uses of the word in the Constitution - as You points out in the article.

Diplomats and Indians weren't fully subject to our laws since those relationships were governed by treaty. Resident aliens (there was no such thing as an illegal alien at the time) were and still are fully subject to our laws.

This is the distinction that I've never heard Levin address.

[TBP]

The constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.

No, it does not. If it intended to say that, the jurisdiction clause is both superfluous and unnecessary. Hence, that must not be the meaning.

Nor did the people who wrote the amendment intend it to be read that way. They specifically said that aliens, owing no allegiance to the United States, were not to be considered citizens and thus neither were their children. they also excluded Indians for the same reason. (this was changed by statute in 1924.)

Current law excludes certain classes of children born here from birthright citizenship. If the Fourteenth Amendment says what Mr. Yoo says it says, then that law is blatantly unconstitutional. But NOBODY is making that argument.

Thus, this claim is provably, demonstrably wrong on both legal and historical grounds.

[TBP]

Congress drafted and sent the amendment to the states for ratification not to change the definition of citizenship

False statement. They sent it to change the definition of citizenship by affirming it for free blacks, who had been declared non-citizens by the Supreme Court.

[M-cubed]

itwasnt even a nice try...its lame at best!

‘and subject to the jurisdiction thereof,” <<<

THE OPERATIVE WORDS......DUH!