Interpreting the Fourteenth Amendment: The Long and Convoluted Record on Birthright Citizenship

As with so many constitutional and political disputes, the renewed controversy over the 14th Amendment has both sides claiming degrees of clarity and certainty that belied by a long and convoluted historical record.  I have written and spoken this week about the arguments on both sides of this issue — a debate that has raged for 150 years. Frankly, I believe a court ruling would be welcomed to bring clarity and closure to the issue.  The plain meaning of the 14th Amendment supports unlimited birthright citizenship and that is likely where the courts would come out on the issue. Nevertheless, from the time of ratification, there has been a debate over that interpretation with many Democratic and Republican members arguing for decades that the matter is left to Congress.  For decades, many have held to the belief that either the14th Amendment leaves the matter to Congress or limits the right to birthright citizenship.

As I have stated, President Donald Trump is wrong to try to do this with an executive order. I testified against President Barack Obama using such executive orders to force major changes in immigration and other areas.  It was wrong then and it is wrong now. (Note: if the 14th Amendment is found by the court to be limited to exclude illegal immigrants, he would not be trying to “amend the Constitution” with an executive order but simply order compliance with its meaning).

Sen. Lindsay Graham has said that he will introduce legislation to accomplish the same result. That is a much better vehicle for a change.  It removes the obvious threshold question of the means used by challengers.

Once a court looks at the meaning of the 14th Amendment, the plain meaning of the Amendment would likely prevail and I would be inclined to that view.  However, it is wrong to dismiss alternative interpretations as frivolous or bad faith.  This is a long standing debate. The Amendment itself was designed to address a different issue:  guaranteeing the full rights of citizenship for free slaves after the Civil War.  The status of the children of undocumented immigrants was simply not the focus.

That forces a lot of attention on the six maddening words popping up in the middle of the 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 State wherein they reside.”

The natural reading would be to simply conclude that anyone on our soil is subject to its jurisdiction and therefore any children born to them are citizens by birth. That is a compelling interpretation based on the plain making, though it makes the six words somewhat redundant with “born . . .  in the United States.”

Making this more difficult is the fact that illegal immigration was not a primary concern during the period.  Indeed, few academics argue that the drafters had this specific question in mind when they wrote this Amendment.  Nevertheless, some of the drafters appeared to continue to hold with a more narrow interpretation like Senator Jacob Howard who said  during the debate that

“This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

There was also the Civil Rights Act of 1866 which stated “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.”  Even the meaning of that lines was contested.

The point is that there is a basis for people of good faith to disagree and there is no need to overstate the record.  The advantage on the issue rests with the plain meaning and the unlimited view of birthright citizenship.  It also means that Trump is wrong about using an executive order. However, a clear ruling of the Court would be useful in establishing whether a constitutional amendment is required.

 

172 thoughts on “Interpreting the Fourteenth Amendment: The Long and Convoluted Record on Birthright Citizenship”

  1. I will note that the original version of the Constitution also had a statement about slaves being outlawed in 20 years after ratification. This was ignored. But this was a good starting point for how the 14th Amendment could have been written, so that it would have set forth a specific end-date for the provision, since it was intended to apply to former slaves and their children.

    1. No, the provision stated that no measure to regulate the slave trade could be enacted until 1808. In 1808, the Congress passed a law prohibiting the importation of slaves.

  2. As a matter of tactics, Pres. Trump could issue an EO late in 2018 which has an effective date of Jan 1 2020 to narrow automatic birthplace policy to PLRs.

    That would give Congress a full year to take responsibility for clarifying the full reach of automatic birthplace citizenship.

    Since not yet in effect yet, it would not be easy to file a suit in Federal Court, since there would not be any plaintiff claiming harm until 2020.

    At the end of 2019, if Congress shirked its responsibilities under Article I Section 8, leaving the citizenship status of some 300,000 babies per year in legal limbo, Pres. Trump would have a much stronger case for his Administrative action when it gets to Federal Court.

    And, finally, who would be the plaintiff(s)? The question of standing could not be separately addressed from the main question, since technically, as of the effective date, the plaintiff baby would be a foreign national challenging an immigration policy. Also, what would be the injury claimed? Is there an argument that a baby obtaining the same nationality as its parents is a form of harm? That would be a novel theory. Is it harmful to repeal a lax “giveaway” of citizenship never decided with authority (Ratification, Act of Congress)?? They’d have to choose a baby whose parents come from a nation not supporting jus sanguinis. The claim would be that a baby was left without any nationality. However, choosing such a plaintiff could significantly narrow the impact of a decision, excluding nationalities that support jus sanguinis. A new loophole would thus be created. What then if some nation repealed jus sanguinis in order to promote US anchor baby births?

    SCOTUS could not avoid a decision by using non-standing as a technicality to dismiss the plaintiffs.

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