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"the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment"

Citizenship shouldn’t be a birthright (July 18, 2018)

A Supreme Court confirmation fight always raises constitutional hopes and stokes constitutional fears. With one more justice, they’ll repeal Obamacare! If they get one more justice, they’ll overturn Roe v. Wade ! To arms!

These periodic, now-inevitable freakouts are a sad byproduct of our country’s drift away from political rule and over-investiture of power in the judiciary. But happily, the most urgent constitutional challenge of our time needn’t wait on a court ruling. Each political branch of government has the constitutional authority needed to fix it.

I refer, here, to ending birthright citizenship.

The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.

Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment. The purpose of that amendment was to resolve the question of citizenship for newly freed slaves. Following the Civil War, some in the South insisted that states had the right to deny citizenship to freedmen. In support, they cited 1857’s disgraceful Dred Scott v. Sandford decision, which held that no black American could ever be a citizen of the United States.

A constitutional amendment was thus necessary to overturn Dred Scott and to define the precise meaning of American citizenship.

That definition is the amendment’s very first sentence: “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 amendment clarified for the first time that federal citizenship precedes and supersedes its state-level counterpart. No state has the power to deny citizenship, hence none may dispossess freed slaves.

Second, the amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else” — that is, to no other country or tribe. Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

Yet for decades, U.S. officials — led by immigration enthusiasts in and out of government — have acted as though “subject to the jurisdiction” simply means “subject to American law.” That is true of any tourist who comes here. The framers of the 14th Amendment added the jurisdiction clause precisely to distinguish between people to whom the United States owes citizenship and those to whom it does not.

Those framers understood, as did America’s founders, that birthright citizenship is inherently self-contradictory. A just government in the modern world rests on the social compact, a freely entered agreement among free citizens. That compact’s scope and authority extend only to those who have consented to its terms and whose membership has been consented to by all other citizen-members. A compact that anyone can join regardless of the wishes of its existing members is not a compact. As President Trump likes to say, “If we don’t have a border, we don’t have a country.” (read more)

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