The Case Against Birthright Citizenship Trump’s critics misread the text and history of the 14th Amendment. By Matthew Spalding
https://www.wsj.com/articles/the-case-against-birthright-citizenship-1541025425
President Trump accomplished something remarkable this week: He sent his harshest critics and closest allies running to the Constitution. In an interview about immigration, the president argued that the “ridiculous” policy of birthright citizenship has to end—and that he can do it through an executive order.
In response, Democrats and Republicans alike have raised the banner of the 14th Amendment: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” They claim this means anyone born in the U.S. has a constitutional right to citizenship. But a closer look at the language and history shows this is not the Constitution’s mandate and should never have become national policy.
The crucial phrase is “subject to the jurisdiction thereof.” As originally understood when Congress proposed the amendment in 1866, that referred not merely to the obligation of following U.S. laws but also, and more important, to full political allegiance. According to Lyman Trumbull—who was chairman of the Senate Judiciary Committee and a co-author of the 14th Amendment—being “subject to the complete jurisdiction of the United States” meant “not owing allegiance to anybody else.”
That reading is supported by the 1866 Civil Rights Act, also written by Trumbull, which Congress passed over President Andrew Johnson’s veto before proposing the 14th Amendment. The Supreme Court endorsed this reading in the Slaughter-House Cases (1872) and Elk v. Wilkins (1884).
Even when the justices expanded the constitutional mandate U.S. v. Wong Kim Ark (1898), the decision cited as establishing birthright citizenship, they held only that the children of legal permanent residents were automatically citizens. The high court has never held that the clause confers automatic citizenship on the children of temporary visitors, much less of aliens in the country illegally.
Mr. Trump is correct, then, that doing away with birthright citizenship wouldn’t require a constitutional amendment. But what about statutes enacted by Congress? Section 5 of the 14th Amendment gives lawmakers the power “to enforce, by appropriate legislation, the provisions of this article.”
Congress has expanded the categories of people entitled to citizenship at birth. The relevant statute lists eight categories, for instance granting citizenship to babies born in unincorporated U.S. territories to at least one American parent. This applied to the late Sen. John McCain, who was born on a U.S. naval base in the Panama Canal Zone. Concerning the question at issue here, though, the law is clear but not explicatory, borrowing the 14th Amendment’s language: “a person born in the United States, and subject to the jurisdiction thereof.”
With this judicial and legislative lack of clarity, an executive order is perfectly proper, perhaps even necessary, to instruct executive-branch officials and agencies not to confer birthright citizenship except when Congress or the Supreme Court has mandated it. To say that an executive order is necessary and proper, though, does not mean it fully settles the matter. The issue of birthright citizenship should be part of a larger legislative package focused on strengthening the U.S., its security and its economy. CONTINUE AT SITE
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