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.

[itsahoot]

Again, the reader will have to satisfy himself by resort to the Law Review article.

The reader will have to dispel any notion of common sense to believe that anyone who happens to be here illegally is entitled to birthright citizenship. Only lawyers can read "Thou Shalt not" and determine that it means sometimes is ok.

[itsahoot]

those here illegally are subject to the jurisdiction.

Subject to the laws not Jurisdiction.

[Forty-Niner]

I’ve always had a problem with the word “interpret.” To me the word describes what an actor does.....give new meaning to an author’s work.

The judiciary’s job is to apply the law, not interpret it, with the US Constitution being the first order of authority.

[Cboldt]

-- Subject to the laws not Jurisdiction. --

I'll restate my point with your remark in mind. I expect the court to conflate "subject to the laws" with "subject to the jurisdiction," and hold that children of parents who are here illegally are natural born US citizens, because that's what "subject to the jurisdiction" phrase in the 14th amendment means.

[Liz]

The 2014 Midterm Dem Demolition Derby" and down-ticket
state wins have yet to be fully- mined, but this we know:

<><> REPUBLICANS WON STUNNING HISTORY-MAKING ELECTORAL VICTORIES

<><> midterms were a massive and awesome rejection of liberals;

<><> Southern Democrats control not a single governorship, US senator or legislative chamber,

<><> Democrat losses stretch from the Carolinas westward to Texas,

<><> 110 Of 140 Southern States election districts went Republican.

<><> GOP's House majorities are so huge and solid NBC's Chuck Todd says Dems can't recapture losses until 2022.

<><> Some pundits say Republicans have a 100-year majority;

<><> when the next US Senate convenes, 30 lock-stepping Democrats who voted for Obamacare are gone.

<><> Ark and Ill (Clinton hometowns) have Repub governors---important in a prez race b/c guvs control party machinery.

<><> Unprecedented MINN 6th Congressional district---every single House and Senate district went Repub

<><> GOP now controls the MINN State House.

<><> Ohio's historic GOP statehouse takeover (Gun Control is toast)

<><> Ohio's Gov, Lt. Gov, AG, Secy of State, State Auditor, State Treasurer--all R---Sup/Ct - 6 R/1 D

<><> Britt Hume sez: "latino vote is zilch"---"over-50" is significant 30% voting segment.

<><> Republicans unified control: gov/legislature in 23 states (Ntl Conference of State Legislatures factoid).

<><> Repub governorships: Florida, Tx, Ill, Ohio, Mich, MD, Wisconsin, NC, GA, Mass.

<><> GOP holds every congressional seat in Arkansas; first time in 141 years...

<><> Environmentalists fogged out---suffered huge losses.

<><> Gun Control Candidates blitzed.

<><> "War on Women" became a ntl joke.

<><> Clinton's labeled politically useless---most candidates they flacked lost.

<><> Montana, So/Dakota and West/VA Dems were forced to retire; no hope of getting re-elected,

<><> Arizona House recount race went Republican.

<><> AZ Republican McSally wins last open House seat (Dem Gaby Giffords seat),

<><> Repub McSally's win gives GOP 5-4 advantage in AZ congressional delegation,

<><> Repubs hold 247 House seats (Dems 188), the largest GOP advantage since the Truman admin after WWII.

<><> 73 percent of LA's white voters say told they "strongly disapproved" of the president.

<><> Republicans hold the largest House majority in 83 years.

<><> Republicans holds 68 of 98 state legislative chambers.

<><> 2015 Republican grip on state government has not been seen since the 1920s.

<><> Republicans hold or share control in nearly every state (7 states' legislature and Governor are Dem-held).

<><> 12 states, including Missouri, Arizona, Arkansas, NC will push income tax cuts and fiscal reform.

<><> Illinois’ new Repub Governor’s top priority is reforming its nearly-bankrupt public pension system.

<><> Vermont Democrats allied w/ VT conservative Repubs to ward off voter backlash

<><> controversial and seemingly incompetent VT Democrat governor did not get the requisite votes to stay in office.

<><> VT poised to install Vermont's first Republican governor in over four years

<><> Republicans now control two-thirds of the state legislatures.

======================================

The Republican wave did not end in November 2014. Later, Republicans expanded their majority in the Pennsylvania House of Representatives in the 170th district. Expanding a legislative majority in a blood red state that twice voted for Barack Obama.

[Liz]

The spectrum of Republican takeover as of midnight 11/5/14.
La, Alaska Senate races went Repub. AZ House recount went Repub.

Midterm Map courtesy of http://www.nationaljournal.com

<><> Republican sweep leaves 1-2 slivers of coastal territory, and splotches of interior to Dems,

<><> Democrats' new coalition includes Hollyweirdos, the one percenters, govt dependents, sex addicts, Viagra and condom users, abortion worshippers,

<><> Democrats control votes in the inner city, bodegas, payday loan mills, fast food joints, gangland strongholds, sleazy Hollywood motels, Indian reservations, pineapple plantations, tacoterias, Boston beaneries, coastal clam shacks and surf shops.

=====================================================

REALITY CHECK--AMNESTY-SUCKING DEMOCRATS DROWNED IN A SEA OF RED ---2014 MIDTERM results evidenced not a single state, local or political entity claiming victory w/ latino votes.

2014 was a tsunami that submerged AMNESTY-SUCKING DEMOCRATS in waves of defeat. Democrats who ran on amnesty were soundly defeated.

Fox's astute reoprter---Britt Hume----said the latino vote was not even a factor when Republicans won historic one-for-the-books elections---from sea to shining sea. Not one distrit attributed wins to latino votes.

[semimojo]

What established the diplomatic immunity? There isn’t a constitutional requirement that there be such a thing. It was an act of Congress that did so.

It's a product of treaty, in this case the Vienna Convention on Diplomatic Relations from 1961.

Treaty is the same basis for excluding Indians - our dealings with them them were goverened by treaty.

[HiTech RedNeck]

And who affirms treaties... it isn’t the Treaty Fairy

[GOPJ]

We need to elect a new bunch of people...

[semimojo]

For what it's worth, I had a realization the other day. The 14th amendment specifically exempts Indians (Not Taxed) from birth citizenship.

No, the second clause exempts them from being counted for apportionment purposes, but in the citizenship clause they aren't specifically called out, just included in the not "subject to the jurisdiction" language.

[semimojo]

And who affirms treaties... it isn’t the Treaty Fairy

So acts of Congress can create international treaties? Sweet! Who knew? Let's get started restructuring the global order.

[HiTech RedNeck]

The Senate, at the least, must give the nod to such a thing.

So why should not the full legislative process be accorded at least as much respect.

[Plummz]

What if President Trump just told the court to f*ck off and that his administration would follow the plain meaning of the 14th and the extant statute that codifies it? Would SCOTUS send US Marshalls to arrest him?

[Jim Noble]

ju·ris·dic·tion

noun

1) the official power to make legal decisions and judgments.
“federal courts had no jurisdiction over the case”
synonyms: authority, control, power, dominion, rule, administration, command, sway, leadership, sovereignty, hegemony
“an area under French jurisdiction”

2) the extent of the power to make legal decisions and judgments.
“the claim will be within the jurisdiction of the industrial tribunal”

3) a system of law courts; a judicature.
plural noun: jurisdictions
“in some jurisdictions there is a mandatory death sentence for murder”

[semimojo]

The Senate, at the least, must give the nod to such a thing.

So why should not the full legislative process be accorded at least as much respect.

No disrespect to Congress but the point of a treaty is to formalize an agreement between sovereign parties. Congress can't tell another country to give our diplomats immunity. All the Senate can do is ratify an agreement negotiated by the Executive.

[Repeal 16-17]

What if President Trump just told the court to f*ck off and that his administration would follow the plain meaning of the 14th and the extant statute that codifies it? Would SCOTUS send US Marshalls to arrest him?

Why? The Supreme Nine have never ruled (dicta doesn't count) that the birthright citizenship reading of the Citizenship Clause is correct.

[Plummz]

I’m assuming there would have been a case by that time. If Congress passed a law, or Trump an executive order interepreting the extant statute, the immigration groups would file suit immediately and it would probably go the heavily-Communist SCOTUS in under two years.

[Repeal 16-17]

That’s assuming President Trump hasn’t replaced Anthony Kennedy or one of the consistently Liberal Justices by the time such a case reached the Court. If he’s able to do so, he would likely be facing a friendly Supreme Court.

[GOPJ]

Must be the 'press effect'. Doesn't seem to matter how many States we take - or legislatures - it feels like dems have the power ‘swagger’...

“Not one district attributed wins to Latino votes.”

With the way the MSM and dems talk is easy to believe Latinos control the vote... obviously they don't... not even a little. Thanks for putting all this together Liz - very thoughtful...

[Plummz]

I wouldn’t count on Roberts for this one. Even some of the other Republican appointees might be compromised on this one.