Donald Trump continues to bewilder political experts. He
unabashedly wades into politically dangerous territory and yet continues
to be rewarded by favorable poll results. He has clearly tapped into a
reserve of public resentment for inside-the-Beltway politics. How far
this resentment will carry him is anyone’s guess, but the Republican
establishment is worried. His latest proposal to end birthright
citizenship has set off alarm bells in the Republican party.
The leadership worries that Trump will derail the party’s plans to
appeal to the Latino vote. Establishment Republicans believe that the
future of the party depends on being able to capture a larger share of
this rapidly expanding electorate. Trump’s plan, however, may appeal to
the most rapidly expanding electorate, senior citizens, and may have an
even greater appeal to the millions of Republicans who stayed away from
the polls in 2012 as well as the ethnic and blue-collar Democrats who
crossed party lines to vote Republican in the congressional elections of
2014. All of these voters outnumber any increase in the Latino vote
that Republicans could possibly hope to gain from a population that has
consistently voted Democratic by a two-thirds majority and shows little
inclination to change.
RELATED: Not Hard to Read the 14th Amendment As Not Requiring Birthright
Citizenship — And Nothing Odd About Supporting Such a Reading
Critics say that Trump’s plan is unrealistic, that it would require a
constitutional amendment because the 14th Amendment mandates birthright
citizenship and that the Supreme Court has upheld this requirement ever
since its passage in 1868. The critics are wrong. A correct
understanding of the intent of the framers of the 14th Amendment and
legislation passed by Congress in the late 19th century and in 1923
extending citizenship to American Indians provide ample proof that
Congress has constitutional power to define who is within the
“jurisdiction of the United States” and therefore eligible for
citizenship. Simple legislation passed by Congress and signed by the
president would be constitutional under the 14th Amendment.
Birthright citizenship is the policy whereby the children of illegal
aliens born within the geographical limits of the U.S. are entitled to
American citizenship — and, as Trump says, it is a great magnet for
illegal immigration. Many of Trump’s critics believe that this policy is
an explicit command of the Constitution, consistent with the British
common-law system. This is simply not true.
Congress has constitutional power to define who is within the
“jurisdiction of the United States” and therefore eligible for
citizenship.
Although the Constitution of 1787 mentioned citizens, it did not define
citizenship. It was in 1868 that a definition of citizenship entered the
Constitution with the ratification of the 14th Amendment. Here is the
familiar language: “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.” Thus there are two
components to American citizenship: birth or naturalization in the U.S.
and being subject to the jurisdiction of the U.S. Today, we somehow have
come to believe that anyone born within the geographical limits of the
U.S. is automatically subject to its jurisdiction; but this renders the
jurisdiction clause utterly superfluous. If this had been the intention
of the framers of the 14th Amendment, presumably they would have said
simply that all persons born or naturalized in the U.S. are thereby
citizens.
Read more at: http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution
Read more at: http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution
Indeed, during debate over the amendment, Senator Jacob Howard, the
author of the citizenship clause, attempted to assure skeptical
colleagues that the language was not intended to make Indians citizens
of the United States. Indians, Howard conceded, were born within the
nation’s geographical limits, but he steadfastly maintained that they
were not subject to its jurisdiction because they owed allegiance to
their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the
Senate Judiciary Committee, supported this view, arguing that “subject
to the jurisdiction thereof” meant “not owing allegiance to anybody else
and being subject to the complete jurisdiction of the United States.”
RELATED: End Birthright Citizenship Now: Barack Obama Makes the Case
Jurisdiction understood as allegiance, Senator Howard explained,
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.” Thus, “subject to the jurisdiction” does not simply
mean, as is commonly thought today, subject to American laws or courts.
It means owing exclusive political allegiance to the U.S.
Furthermore, there has never been an explicit holding by the Supreme
Court that the children of illegal aliens are automatically accorded
birthright citizenship. In the case of Wong Kim Ark (1898) the Court
ruled that a child born in the U.S. of legal aliens was entitled to
“birthright citizenship” under the 14th Amendment. This was a 5–4
opinion which provoked the dissent of Chief Justice Melville Fuller, who
argued that, contrary to the reasoning of the majority’s holding, the
14th Amendment did not in fact adopt the common-law understanding of
birthright citizenship.
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The framers of the Constitution were, of course, well-versed in the
British common law, having learned its essential principles from William
Blackstone’s Commentaries on the Laws of England. As such, they knew
that the very concept of citizenship was unknown in British common law.
Blackstone speaks only of “birthright subjectship” or “birthright
allegiance,” never using the terms “citizen” or “citizenship.” The idea
of birthright subjectship, as Blackstone admitted, was derived from
feudal law. It is the relation of master and servant: All who are born
within the protection of the king owed perpetual allegiance as a “debt
of gratitude.” According to Blackstone, this debt is “intrinsic” and
“cannot be forfeited, cancelled, or altered.” Birthright subjectship
under common law is the doctrine of perpetual allegiance.
America’s Founders rejected this doctrine. The Declaration of
Independence, after all, solemnly proclaims that “the good People of
these Colonies . . . are Absolved from all Allegiance to the British
Crown, and that all political connection between them and the State of
Great Britain, is and ought to be totally dissolved.” So, the common law
— the feudal doctrine of perpetual allegiance — could not possibly
serve as the ground of American citizenship. Indeed, the idea is too
preposterous to entertain.
RELATED: Trump’s Immigration Plan Is a Good Start — For All GOP
Candidates
Consider as well that, in 1868, Congress passed the Expatriation Act.
This permitted American citizens to renounce their allegiance and
alienate their citizenship. This piece of legislation was supported by
Senator Howard and other leading architects of the 14th Amendment, and
characterized the right of expatriation as “a natural and inherent right
of all people, indispensable to the enjoyment of the right of life,
liberty and the pursuit of happiness.” Like the idea of citizenship,
this right of expatriation is wholly incompatible with the common-law
understanding of perpetual allegiance and subjectship. One member of the
House expressed the general sense of Congress when he proclaimed: “The
old feudal doctrine stated by Blackstone and adopted as part of the
common law of England . . . is not only at war with the theory of our
institutions, but is equally at war with every principle of justice and
of sound public policy.” The notion of birthright citizenship was
characterized by another member as an “indefensible doctrine of
indefeasible allegiance,” a feudal doctrine wholly at odds with
republican government.
Nor was this the only legislation concerning birthright citizenship that
Congress passed following the ratification of the 14th Amendment. As
mentioned above, there was almost unanimous agreement among its framers
that the amendment did not extend citizenship to Indians. Although born
in the U.S., they were not subject to the jurisdiction of the U.S.
Beginning in 1870, however, Congress began to pass legislation offering
citizenship to Indians on a tribe-by-tribe basis. Finally, in 1923,
there was a universal offer to all tribes. Any Indian who consented
could become a citizen. Thus Congress used its legislative authority
under Section Five of the 14th Amendment to determine who was within the
jurisdiction of the U.S. It could make a similar determination today,
based on this legislative precedent, that children born in the U.S. to
illegal aliens are not subject to the jurisdiction of the United States.
A constitutional amendment is no more required today than it was in
1923.
A nation that cannot determine who becomes citizens or believes that
it must allow the children of those who defy its laws to become
citizens is no longer a sovereign nation.
Legislation to end birthright citizenship has been circulating in
Congress since the mid ’90s and such a bill is circulating in both
houses today. It will, of course, not pass Congress, and if it did pass
it would be vetoed. But if birthright citizenship becomes an election
issue and a Republican is elected president, then who knows what the
future might hold. It is difficult to imagine that the framers of the
14th Amendment intended to confer the boon of citizenship on the
children of illegal aliens when they explicitly denied that boon to
Indians who had been born in the United States. Those who defy the laws
of the U.S. should not be allowed to confer such an advantage on their
children. This would not be visiting the sins of the parents on the
children, as is often claimed, since the children of illegal aliens born
in the U.S. would not be denied anything to which they otherwise would
have a right. Their allegiance should follow that of their parents
during their minority. A nation that cannot determine who becomes
citizens or believes that it must allow the children of those who defy
its laws to become citizens is no longer a sovereign nation. No one is
advocating that those who have been granted birthright citizenship be
stripped of their citizenship. Equal protection considerations would
counsel that citizenship once granted is vested and cannot be revoked;
this, I believe, is eminently just. The proposal to end birthright
citizenship is prospective only.
More Immigration
The Very Real Economic Costs of Birthright Citizenship
What Conservatives Get Wrong about Birthright Citizenship and the
Constitution
Donald Trump’s Half-Serious, Half-Fantasy Immigration Plan
Political pundits believe that Trump should not press such divisive
issues as immigration and citizenship. It is clear, however, that he has
struck a popular chord — and touched an important issue that should be
debated no matter how divisive. Both the Republican party and the
Democratic party want to avoid the issue because, while both parties
advocate some kind of reform, neither party has much interest in curbing
illegal immigration: Republicans want cheap and exploitable labor and
Democrats want future voters. Who will get the best of the bargain I
will leave for others to decide.
