We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship

National Review ^ | 08/24/2015 | John Eastman

[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.

[Sasparilla]

Accurate analysis.

[Mr. K]

The judge who ruled on the 14th amendment case said it best: “No one can become a citizen of a country without its consent”

In other words, you can’t come here illegally, drop a kid over the goal line, and claim winnings.

[Mr. K]

If “jurisdictions” meant merely being present on our soil and then obeying our laws (excluding, apparently, illegally arriving here), then there would be no need for that word “jurisdictions”.

It would be simpler and MORE EFFECTIVE to simply say “anyone born here is a citizen” if that is what they meant.

But they clearly did NOT mean that.

[frog in a pot]

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.

Clearly the basis for a new president's first Executive Order.

[Cboldt]

-- Accurate analysis. --

Yes, for what it's worth. Courts are not beholden to correct application of precedent or "accuracy." No doubt there are sentences in the law, here and there, that when put in isolation will reach the opposite conclusion. Courts will choose whichever language fits the predetermined outcome.

[Cboldt]

-- If "jurisdictions" meant merely being present on our soil and then obeying our laws (excluding, apparently, illegally arriving here), then there would be no need for that word "jurisdictions". --

Yes there would. Diplomats and invading armies. That's the extent of application of "subject to the jurisdiction", as popularly applied by courts for the last 100 or so years.

[Tucker39]

Under “INFORMATION YOU NEVER ASKED FOR”: Just last week a friend was startled to learn that Sasparilla or Sassaparilla is NOT the correct name of the soft drink which was the butt of jokes in saloons of the old wild west.

The name is Sarsaparilla. Sasparilla is a bastardization of it by the oldtimers who drank it and/or made jokes about it. Very similar to the bastardization of the name “Vacquero” for cowboys south of the border, which became Buckaroo among American cowboys.

Have a great week, Sassy.

[Drew68]

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.

Every is talking about repealing, reinterpreting or rewriting the 14th Amendment in regards to the children of illegals.

If we enforced our borders, it wouldn't be an issue in the first place.

[Jim Noble]

It’s a good point you make about courts.

The chances that the Mark Levin argument about the meaning of “jurisdiction” will prevail in any currently constituted US Federal court are zero. This is a fact, really behind dispute.

Either the Constitution is amended to correct this error, or the current situation will go on. That’s all there is to it.

Since the illegals damage the States and their budgets more than anything else, getting 38 states to ratify a simple amendment should be simple. Sending such an amendment TO the States for ratification is far from simple, however, since the Cheap Labor Express holds strong majorities in both Houses of Congress.

[11th Commandment]

Excellent, so for all the anchors who used the Wong Kim Ark to show anchor babies are citizens, the case actually proves otherwise...

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.

[Terry L Smith]

It is time to re-enact, as we Americans love to do, the very actions President Eisenhower took on illegal immigration.

I might add, if they do not get on the vessel of conveyance, discretionary applications of non-existence might be in order.

[Jim Noble]

“No one can become a citizen of a country without its consent”

Think that through (I agree with the sentiment).

Where do you draw the line?

My seven children were born to two US citizens, themselves born to two US citizens each, on US soil.

Do they require consent of the legislature, or the people, to be recognized as US citizens at birth?

My wife is eligible to become a citizen of Ireland through the one-grandparent rule. Does this affect the process by which our children become US citizens?

I understand what you are trying to do. The concept is clear, putting it into amendatory language which doesn't screw something else up is not simple.

[Sasparilla]

...Courts are not beholden to correct application of precedent or “accuracy.”...

Judges, when making decisions will quite often tell their clerk to write the decision, and instruct them to find a way bending and stretching precedent and controlling law, and do it in such a way that what is a laughable ruling actually comes across as plausible.

[Mr. K]

Boy did you miss my point. If they apply the meaning as merely being on our soil, then it is better NOT TO have that language.

[Mr. K]

You already and automatically without question have that consent by living here and being US citizens. You don’t require anyone to give you consent.

If you are here ILLEGALLY, though, then you don’t have the consent of the government to be here in the first place, let alone the consent to drop a kid and have him automatically become a citizen

[Rusty0604]

This country is being brought down by judges in our courts interpreting the law as it suits them.

[Ann Archy]

NO MORE BIRTHRIGHT CITIZENSHIP!!!

[longtermmemmory]

take over the law schools means take over the judges.

law schools are due for a purge of the left wing professors. Remember law professors are refugees from the real world.

[nathanbedford]

Justin Lollman. in his note in the Virginia Law Review accepts the case against birthright citizenship by aliens made by Prof. Chapman in this article but digs deeper and extends the analysis further.

In essence, he picks up the article with the 1898 case of United States versus Wong Ark and finds that the issue of course turns on the meaning of "subject to the jurisdiction" and he looks to the case and to the legislative and constitutional history to determine that meaning. You will note that Prof. Chapman talks about the Supreme Court in the Wong case finding that the parents of the birth child in question were "domiciled" in the United States. He concludes with Chapman that jurisdiction means allegiance. Chapman creates two categories geographical and legal allegiance but also notes the influence of domicile.

Here is where Justin Lollman goes a step further than Chapman. Lollman agrees that the allegiance of the parents of the child determines jurisdiction but insists that it is the reasoning of the Supreme Court that domicile determines allegiance. Without setting forth at length the arguments in support of this proposition, I leave it to the reader to investigate as he pleases to determine whether the arguments marshaled in support of the idea that domicile determines allegiance and allegiance determines jurisdiction and jurisdiction determines citizenship, is well made in the Virginia Law Review article.

So far opponents of birth citizenship should be happy whether one accepts the Chapman version or the Justin Lollman version but now Lollman takes yet another step beyond Chapman. His analysis tells him that domicile is a question of residence plus intent but not a question of legality. Therefore, illegal aliens who set up residence with the indicia of an intent to remain in the states have established domicile and therefore their children are entitled to citizenship status. The two authors are not in conflict over this next step because they do not engage in the argument except the Chapman thinks the matter is concluded by the assertion that children of illegal aliens are excepted. Again, the reader will have to satisfy himself by resort to the Law Review article.

A good homegrown discussion can be found here