No, It Is Not Racist To Oppose Birthright Citizenship

Below is my column in The Hill on the recent controversy over President Donald Trump’s comments on ending birthright citizenship. The most notable criticism came from Professor Lawrence Tribe who accused Trump of pursuing a racist agenda to “reverse the outcome of the Civil War.” Others have also labeled the effort as racist including media coverage. It isn’t and the underlying constitutional question is unresolved.

Here is the column:

It is not every day that you are accused of trying to change the outcome of the Civil War, unless you are Donald Trump. After the president had reaffirmed his intention to seek the end of birthright citizenship, Harvard Law Professor Laurence Tribe unleashed a furious tweet declaring, “This fuxxxng racist wants to reverse the outcome of the Civil War” by changing the meaning of the 14th Amendment. Of course, birthright citizenship of immigrants was not what the Civil War was fought over. That was slavery.

Tribe is correct, however, that one of the outcomes was the passage of the 14th Amendment in 1868 to guarantee the rights of citizenship to protect the status of freed American slaves. That much is clear. The problem is that little else is. Since the 14th Amendment was ratified, many leaders have opposed claims of birthright citizenship, including former Senate Majority Leader Harry Reid. Moreover, most countries reject such claims of citizenship. One can be entirely on board with the outcome of the Civil War, not be a racist, and still oppose birthright citizenship.

The 14th Amendment starts and ends as a model of clarity, stating that “all persons born or naturalized in the United States” are “citizens of the United States and of the state wherein they reside.” But between those two phrases, Congress inserted the words “and subject to the jurisdiction thereof.” Those six words have perplexed scholars for 150 years. The dominant view of law professors is the line as a whole guarantees that anyone born within the United States becomes a American citizen. But many believe that the caveat means you must be here in a legal status, that if you are not a American citizen, then you are a legal resident.

At the time it was written, the sponsors expressly stated its purpose as protecting freed slaves and not the offspring of foreign citizens. Republican Senator Jacob Howard, who was a coauthor of the 14th Amendment, said that it was “simply declaratory” of the Civil Rights Act to protect freed slaves. He assured senators, “This will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.”

Then there was Republican Senator Lyman Trumbull, who was the author of the 13th Amendment, the Civil Rights Act, and a drafter of the 14th Amendment. Trumbull stressed that the six words only included those “not owing allegiance to anyone else.” Yet, other members objected that the language could cover anyone physically within the United States.

The Supreme Court seems to reflect the same confusion over the caveat. Not long after the 14th Amendment was ratified, the justices seemed to affirm that the language was meant solely to protect the status of freed slaves. In the Slaughterhouse Cases, the Supreme Court explained the phrase “subject to its jurisdiction” was “intended to exclude from its operation” children of “citizens or subjects of foreign States born within the United States.” A few years later, the justices cast doubt over claims that the 14th Amendment grants citizenship to “children born within the jurisdiction without reference to the citizenship of their parents.”

Later, in 1884, the Supreme Court stated unequivocally in John Elk versus Charles Wilkins that parents must not merely be “subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and not subject to any foreign power,” as well as owe the United States “direct and immediate allegiance.” Yet, the Supreme Court also held later that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” But the parents in that case were legal residents. The justices also rejected efforts to draw distinctions between individuals within the United States for other purposes of the 14th Amendment.

So what does all of this mean? It means that anyone who claims that this question is clear is being less than candid. There are strong arguments on both sides of this question. Moreover, it is true that birthright citizenship in the United States makes us one of the most permissive jurisdictions in the world on this issue. While inelegant, Trump has correctly described birthright citizenship “where you have a baby on our land, you walk over the border, have a baby, congratulations, the baby is now a citizen.”

Most of our closest allies in Europe reject such claims. They follow the common practice of “jus sanguinis,” or right of blood, and refuse to recognize citizenship solely because someone was on their territory at birth. Only around 30 countries, including the United States, follow “jus soli,” or right of soil. With no definitive decision by the Supreme Court, the existing precedent favors birthright citizenship, but the outcome is in no way certain. Nevertheless, some justices are likely to get sticker shock over the implications of a narrowing of the interpretation of the 14th Amendment. Chief Justice John Roberts is a judicial incrementalist who resists massive changes ordered from the Supreme Court, and ending birthright citizenship would put the boldest jurist in a fetal position.

If the Supreme Court maintains the broader interpretation of the 14th Amendment, Trump could not carry out his plan with an executive order or even a legislative fix. He would need a constitutional amendment to join the other countries following the rule of “jus sanguinis.” All of this is far more complicated that simply declaring that Trump is some Stars-and-Bars racist pursuing an antebellum agenda. This debate starts with a maddeningly vague caveat of six words followed by 150 years of conflicting legislative and judicial statements on its meaning. This explains why constitutional interpretation can be much like what General Robert Lee once said of combat, “It is well that [it] is so terrible, or we should grow too fond of it.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

200 thoughts on “No, It Is Not Racist To Oppose Birthright Citizenship”

  1. OT: Here is a good example of why the NYTimes is not to be trusted. When finished reading this op-ed one can read the NYTimes article and see how distorted the Times news articles are. NYTimes article at https://www.nytimes.com/2019/03/22/us/antwon-rose-shooting.html but first read the Op-ed.
    —-

    August 21, 2019
    WHY THE NEW YORK TIMES IS UNREFORMABLE AND MUST DIE

    Even before The New York Times launched its “All Slavery, All the Time” project, no one could accuse that paper of skimping on its race coverage, particularly stories about black males killed by white(ish) police officers.

    Here’s one you haven’t heard about. I happened upon it by sheer accident.

    Antwon Rose II was a 17-year-old boy shot by an East Pittsburgh police officer in June 2018 after he bolted from a jitney car that had been stopped by the officer. The Times published about a half-dozen stories on Antwon Rose — or as the Times calls him, “Antwon, who was unarmed.”

    After the officer was acquitted on all charges in March of this year, the Times ran an article by Adeel Hassan on the verdict.

    Here’s what you would learn from the Times:

    — Antwon was unarmed.

    — Antwon “was in his high school’s honors program.”

    — Antwon “played basketball and the saxophone.”

    — Antwon “volunteered for a local charity.”

    — In 2016, Antwon wrote a poem titled, “I Am Not What You Think!” which included these lines:

    I see mothers bury their sons
    I want my Mom to never feel that pain.

    — A policeman stopped the gold Chevy Cruze Antwon “was riding in” because it “matched the description” of a car “involved” in a drive-by shooting minutes earlier.

    — The jury consisted of nine whites and three African Americans.

    If you read the Times piece, all you would know is that an honor student who loved his mom … was KILLED for the crime of riding in a car similar to one that had just been used in a crime.

    Wow. Just wow.

    Here are some of the facts the Times left out:

    — The gold Chevy Cruze Antwon fled did not merely “match the description of” a car used in a drive-by shooting: It was the car used in the drive-by shooting, as proved by surveillance video posted online days after the shooting and shown to the jury.

    — The video shows 13 shots being fired from the back seat of that exact car, with — according to the prosecutor — Antwon riding in the front seat.

    — The backseat passenger, Zaijuan Hester, later pleaded guilty to the drive-by shooting.

    — One of the victims of the drive-by shooting told police it was Antwon who shot him. “The beef was between me and him,” William Ross told a Pennsylvania State Police officer. “That car came by, he shot me, I ran to the store.”

    — The jitney driver told police that, right before the shooting started, he heard the backseat passenger ask, “Is that him?”

    — The gun used in the drive-by was recovered in the back seat of the car.

    — A stolen gun was found under Antwon’s seat, an empty magazine in Antwon’s pants pocket, and there was gunpowder residue on Antwon’s hands.

    — The car stopped by the officer was riddled with bullet holes.

    — The jury that unanimously acquitted the officer was led by an African American foreman, who stoutly defended the verdict.

    None of that made it into the Times story on the trial’s conclusion.

    I’m glad that Antwon did charity work, but isn’t it rather more important that he had participated in a drive-by shooting of two other black guys 13 minutes before being stopped by a police officer?

    That’s not conjecture or speculation. Hassan wasn’t writing about the case the day after the shooting. These are facts that were presented in court and copiously reported by the local media — even in the British press.

    Normal Person to The New York Times: Why did you say the car “matched the description” of the car used in a drive-by shooting — but not say that it WAS the car used in the drive-by shooting?

    NYT: I’m sorry, who are you and do you have a press pass?

    Normal Person: You didn’t mention that a stolen gun was found under Antwon’s seat and a matching cartridge in Antwon’s pocket???

    NYT: We only have so much space and I needed room for Antwon’s poem.

    Normal Person: You didn’t have space to say that gun residue was found on Antwon’s hands?

    NYT: I could have run more of the poem. It was a good poem.

    Normal Person: Or that one of the victims of the drive-by said Antwon was the one who shot him?

    NYT: The officer didn’t know that.

    Normal Person: Did the officer know about Antwon’s A.P. classes? It goes to the likelihood of his behavior being perceived as threatening. The officer could certainly see that the car’s back window had been shot out.

    NYT: You’re a white supremacist and white nationalist and, yes, I know they’re different, but you’re both.

    There’s no reason to think this isn’t standard operating procedure at the Times. The editors can’t say, OK, OK, that one got past us!

    The Times has told wild lies about the racist shooting of Michael Brown in Ferguson, Missouri (false), the racist arrest of Freddie Grey in Baltimore (false), the racist shooting of Trayvon Martin in Florida (false), the racist gang-rape of a black stripper by a Duke lacrosse team (false) and so on.

    Antwon Rose’s shooting wasn’t even a flood-the-zone, hair-on-fire story. But the Times lied about it, too.

    This is a newspaper that cannot be trusted on anything touching on race. They’re liars and ideologues, not reporters and editors.

    COPYRIGHT 2019 ANN COULTER

    1. it serves the interests of a vast and cheap labor force which has driven US immigration policy since day One.

  2. In the United Kingdom until 1983 was like birthright in the United states from 1983 a born child is foreign parents is a citizen if at least one of them is a UK Permanente Resident and that’s definitely subjected to duristrictoin thereof

    1. Once again the term “racist” is used in an uninformed context. An overwhelming majority of anchor babies are Caucasians, as most Hispanics are Caucasian. So how can it possibly be racist for a Caucasian president to want to reconsider the practice?

  3. “A group of conservatives allied with President Trump has combed journalists’ social media as part of a campaign to discredit news organizations” – New York Times Twitter feed

    Trump Allies Target Journalists Over Coverage Deemed Hostile to White House

    https://www.nytimes.com/2019/08/25/us/politics/trump-allies-news-media.html

    By Kenneth P. Vogel and Jeremy W. Peters
    Aug. 25, 2019
    Updated 2:46 p.m. ET

    Excerpt:

    WASHINGTON — A loose network of conservative operatives allied with the White House is pursuing what they say will be an aggressive operation to discredit news organizations deemed hostile to President Trump by publicizing damaging information about journalists.

    It is the latest step in a long-running effort by Mr. Trump and his allies to undercut the influence of legitimate news reporting. Four people familiar with the operation described how it works, asserting that it has compiled dossiers of potentially embarrassing social media posts and other public statements by hundreds of people who work at some of the country’s most prominent news organizations.

    The group has already released information about journalists at CNN, The Washington Post and The New York Times — three outlets that have aggressively investigated Mr. Trump — in response to reporting or commentary that the White House’s allies consider unfair to Mr. Trump and his team or harmful to his re-election prospects.

    Operatives have closely examined more than a decade’s worth of public posts and statements by journalists, the people familiar with the operation said. Only a fraction of what the network claims to have uncovered has been made public, the people said, with more to be disclosed as the 2020 election heats up. The research is said to extend to members of journalists’ families who are active in politics, as well as liberal activists and other political opponents of the president. …

    1. They are too late in trying to discredit the left wing news media and social media terrorists. Americans already know they are the enemy. No one quotes them except terrorists

      1. “The only thing ‘Reliable’ about Stelter is that he is reliably a leftwing hack,” Donald Trump Jr. wrote on Twitter.

        https://slate.com/news-and-politics/2019/08/psychiatrist-cnn-trump-responsible-for-deaths-hitler.html

        Psychiatrist on CNN: Trump “May Be Responsible for Many More Million Deaths” Than Hitler, Stalin, Mao

        The former chair of psychiatry at Duke University went on CNN to discuss the dangers of mental health professionals discussing President Donald Trump’s mental state. Frances argued that describing Trump as mentally ill “stigmatizes the mentally ill.” But in the middle of his argument, Dr. Allen Frances claimed Trump may be responsible for more deaths than Adolf Hitler, Joseph Stalin and Mao Zedong.

        “Calling Trump crazy hides the fact that we’re crazy for having elected him,” Frances said on CNN’s Reliable Sources. “And even crazier for allowing his crazy policies to persist. Trump is as destructive a person in this century as Hitler, Stalin and Mao were in the last century. He may be responsible for many million more deaths than they were. He needs to be contained, but he needs to be contained by attacking his policies, not his person.”

        Responding to another Twitter user who called the segment “shameful,” Stelter agreed that “I should have interrupted after that line.” Stelter claimed he was having technical difficulties and did not hear that part of Frances’ answer. “Not hearing the comment is my fault,” he said.

        🖕🏾

    2. Oh, the leftist media is running scared. Disrobed of their paper thin veneer of virtue, they turn out to be nothing more than projectionists foisting their copious sins onto to the rest of us. Then, in the vilest act of any fraud, they commence branding the revealer of their malfeasance as the problem. Luckily, they don’t read the Bible where they might have learned that their days are numbered as deceivers of the masses: “Ye shall know the truth and the truth will set you free.” John 8:32

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