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Birthright citizenship — the idea that anyone born in the United States is automatically a citizen, with full right to receive all benefits and vote when they come of age — has been a fixture of the administration of the laws in this country for my entire lifetime. But does the text of the 14th Amendment to the Constitution make the birthright citizenship rule apply to all cases, even the most extreme? Under the 14th Amendment, properly interpreted, do children born of illegal aliens subject to a deportation order really qualify for birthright citizenship? How about children born of an illegal entrant who has snuck across the border for a few hours just to have the baby and then immediately go home? How about children born of a Chinese billionaire who has hired surrogates in the U.S. to produce dozens of babies? Under the version of “birthright citizenship” implemented by the federal government for the last hundred years or so, all of these examples, and plenty more, qualify.
Advocates for the position that all of these extreme cases should qualify for birthright citizenship generally think that their position is exceedingly simple and obvious, so much so that anyone arguing the contrary, or for any exceptions or limits, must be either dishonest or crazy. Indeed, those were the very words uttered by Harvard Law Professor Gerald Neuman to describe the position of the Trump administration, as quoted in my previous post (December 15) on this subject ([the argument that children of undocumented aliens or those on temporary visas are not citizens by birthright under the 14th Amendment] “is either a crazy theory or dishonest interpretation of the Constitution.”)
But the language of the 14th Amendment clearly does not grant automatic citizenship to all children born on U.S. soil, no matter the circumstances. That is so because there is a qualifying phrase to the otherwise absolute grant of birthright citizenship: “and subject to the jurisdiction thereof.” Those additional words must be given some meaning. (The full text of Section 1 of the 14th Amendment is “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 additional phrase must imply at least some exceptions to the rule of citizenship by birth. How do we figure out what those are?
Advocates for the broad version of birthright citizenship have a quick answer: there is one excluded category, and only one, namely children born to diplomats of foreign countries, while those diplomats are their spouses are in the U.S. Diplomats are entitled to what is called “diplomatic immunity,” which generally means that they cannot be held responsible for crimes committed while here, nor sued civilly in U.S. courts. Prosecuting people for crimes, or holding them responsible for civil wrongs, are forms of exercising jurisdiction over them; thus diplomats are not “subject to the jurisdiction” of the U.S. By contrast, the argument goes, essentially everybody else, including all the most extreme cases of birthright citizenship claimants, can be prosecuted in the U.S. for crimes committed here, or sued here for torts committed here.
So is the case of diplomats the only exception to the rule of birthright citizenship? How might we tell?
The answer is that we get insights by engaging in constitutional interpretation. Over in the legal academy, scholars make careers by devising theories of how to do this. The theory that is currently most in vogue, particularly among the conservative wing of the Supreme Court that is likely to have the deciding voice in this case, is called “original public meaning.” The famous exposition of that theory, should you want to read about it, is found in the majority opinion, written by Justice Scalia, in the 2005 case of District of Columbia v. Heller. That is the case that found that the Second Amendment to the Constitution conferred an individual right to keep and bear arms.
Two decades since Heller, the “original public meaning” theory has largely supplanted the prior dominant theory of interpretation, which was often called “intent of the draftsmen.” Under the “intent of the draftsmen” approach, the key to interpretation was finding useful quotes in the statements of the sponsors in support of their amendment, or in the debates in the Congress or state legislatures considering adoption. Under the “original public meaning” approach, those statements of sponsors and from floor debates have been reduced to near irrelevance. Instead, courts following the “original public meaning” approach are looking to statements in the public square discussing or applying the language at issue, at or around the time of enactment. Of particularly relevance are legal authorities, decided in the context or framework of the disputed language, again during that time frame near enactment.
This is where the situation of Indian citizenship in the late 19th and early 20th centuries becomes critical to interpreting the 14th Amendment. I raised that subject in the December 15 post, and will discuss it further here.
There is a Supreme Court case from 1884, Elk v. Wilkins, that is highly informative. Elk, a member of an active Indian tribe, had left the tribe to go to live among the “white citizens” of Nebraska. He had been born within the territory of the United States. In 1880, he sought to register to vote as a citizen, based on the language of the 14th Amendment, but his application was denied, and he sued to compel the registrar to enroll him. The Supreme Court ruled against Elk. Here is the significant language:
The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. They were never deemed citizens of the United States except under explicit provisions of treaty or statute to that effect. . . . This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is 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. . . . Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana 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.
And thus, despite the 14th Amendment, Indians born in the U.S. remained non-citizens, and generally unable to vote unless naturalized, until the Indian Citizenship Act of 1924.
But the situation of Indians in the 19th century U.S. was different from that of diplomats. Indians did not have diplomatic immunity. Although the situation was complex, and subject to gaps and exceptions, in general an Indian who committed a crime outside of an Indian reservation was subject to criminal prosecution in the regular (non-tribal) state or federal courts. In other words, the alleged distinction based on diplomatic immunity, to explain why diplomats do not get birthright citizenship for their babies but everybody else does, does not stand up to the case of Indians. Indeed, it’s even a little worse, because shortly after Elk, in 1885, Congress passed something called the Major Crimes Act, which authorized prosecution in non-tribal courts of Indians for certain major crimes (like murder) even if committed on a reservation. If this was equivalent to making Indians “subject to the jurisdiction” of the U.S., then this Act would have meant the arrival of birthright citizenship for the Indians. But that is not the way they acted in the 19th century. Despite the Major Crimes Act, the Indians were not accorded general citizenship until 1924.
Note that the proponents of the extreme version of birthright citizenship mainly rely on another late 19th century Supreme Court case, Wong Kim Ark (1898), which was discussed in my December 15 post. The Court in Wong Kim Ark distinguished it from Elk, but did not overrule Elk. Indeed, the two opinions were written by the same justice, Horace Gray, who clearly did not consider them to be inconsistent.
So consider how the combined cases of Elk and Wong Kim Ark apply to the situation of a tourist today. Most tourists are legal tourists with short-term visas. They carry a passport from a foreign government, which is essentially a request by that government to the U.S. to allow its citizen safe passage here. Can it really be said that they are “completely subject to [U.S.] political jurisdiction and owing [the U.S.] direct and immediate allegiance”? Or is their situation closer to that of the Indian who, in the words of Justice Gray, was not “completely” subject to the jurisdiction of the U.S., and did not owe it to “direct and immediate allegiance.”
And if the situation of the legal tourist is close to that of the Indian as characterized by Justice Gray, then how about the situation of the illegal alien? The illegal alien has made no gesture of “direct and immediate allegiance” to the U.S., and indeed has flouted our laws.
Note that I am not saying that this situation is without ambiguities, and that there are no reasonable arguments on the other side. However, I reiterate that I think the question of unrestricted birthright citizenship for all but children of diplomats is an open question. The question of how the 14th Amendment applies to illegal aliens has definitely not been decided by the Supreme Court, and there are reasonable arguments on both sides.
To those who say in this dispute that a President cannot change the Constitution, I say that the current institutional application of birthright citizenship is itself a creation of the executive departments (under multiple presidents) that has never been blessed by the courts. A new President can implement a new policy if the new policy is not precluded by prior court precedent.
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