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. “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.” Well, that seems to make it quite clear.

    Birthright citizenship drives birth tourism by pregnant mothers from all over the world. This is a big thing among Russian women, especially. Get pregnant, time the trip and visa to ensure you give birth here using taxpayer dollars, and have the anchor baby that will grant you a pass around the legal immigration system.

    In multiple ways, we have turned children into passports.

    This is just another example of accusing people of evil intent, pulling out the race card yet again, instead of just discussing the problem. The immigration system is being abused. It bypasses a country’s right to say who and how many. People are taking advantage of an Amendment enacted to protect enslaved people born on American soil.

    How about instead of trying to shut down the argument with more false accusations of racism, people just sit down and discuss the pros and cons of the issue?

    https://www.nbcnews.com/news/us-news/birth-tourism-brings-russian-baby-boom-miami-n836121

    “It’s really common,” said Ekaterina Kuznetsova, 29. “When I was taking the plane to come here, it was not only me. It was four or five women flying here…”

    “It’s not just the Russians who are coming. Chinese moms-to-be have been flocking to Southern California to give birth for years.

    What they are doing is completely legal, as long as they don’t lie on any immigration or insurance paperwork. In fact, it’s protected by the 14th amendment to the U.S. Constitution, which says anyone born on American soil is automatically a citizen.

    The child gets a lifelong right to live and work and collect benefits in the U.S. And when they turn 21 they can sponsor their parents’ application for an American green card.”

    “And as a candidate, he called for an end to birthright citizenship, declaring it in one of his first policy papers the “biggest magnet for illegal immigration.””

    “Roman Bokeria, the state director of the Florida Association of Realtors told NBC News that Trump- branded buildings in the Sunny Isles Beach area north of Miami are particularly popular with the Russian birth tourists and Russian immigrants.

    “Sunny Isles beach has a nickname — Little Russia — because people who are moving from Russian-speaking countries to America, they want … a familiar environment.”

    “They go across the street, they have Russian market, Russian doctor, Russian lawyer,” he added. “It’s very comfortable for them.”

    Image: Oleysa Suhareva traveled from Russia to Miami to give birth.
    Oleysa Suhareva’s baby became an American citizen by being born in Miami.Courtesy Oleysa Suhareva
    Reshetova came to Miami to have her first child, hiring an agency to help arrange her trip. The services — which can include finding apartments and doctors and obtaining visas — don’t come cheap. She expects to pay close to $50,000, and some packages run as high as $100,000. Bokeria says some landlords ask for six months rent up front.”

    1. We have not only turned children into passports, we have turned them into a commodity to be rented, bought, sold and disposed of if they are not wanted or no longer useful.

      Children are essentially sold to coyotes by their families to transport them to the US. It is expected that they will be sexually assaulted during the trip but parents give the older girls birth control and hope they can get to America. Some arrive here and make it to families who will care for them. Many become sex slaves, drug mules or are killed along the way.

      We often see children rented to single men who know that bringing a child with them and claiming to be the child’s father will gain them sympathy from Leftist, open border Democrats and will ensure entry. Once they are free in the US, the children are shipped back across the border to become someone else’s child.

      And, of course, we in America are not much better killing millions of children simply because we can’t be bothered with the expense or responsibility of raising them. Every time I hear a Democrat crying about how much they care about children being separated from their families, it makes me sick because it is a bold face lie.

  2. a) “and subject to the jurisdiction thereof”

    b) “A well regulated Militia, being necessary to the security of a free State”

    Conservatives will say (a) is limiting and (b) is not. Liberals will say (b) is limiting and (a) is not. That’s just how it is.

    1. That is because we look at all the facts surrounding an issue and don’t simply try to squeeze and twist the facts to fit our agenda and support propaganda.

    2. Stop acting dumb!

      Something tells me you are deliberately misreading these amendments, making you a fraud and a deceiver. The Framers told you WHY they precluded the right to keep and bear arms from being infringed, then they told you clearly that the right to keep and bear arms shall not be infringed, absolutely and without qualification. The 14th Amendment requires birth in the U.S. “AND” being “…subject to the jurisdiction thereof,…”
      _______________________________

      “All persons born…in the United States, and subject to the jurisdiction thereof,…”

      The “and” is a conjunction between the two clauses (making it one thought and statement) which are separated by a comma in the writing style of 1789.

      vs.

      Two separate clauses, a prefatory clause and an operative clause, making it two separate thoughts and two entirely different statements:

      1. A militia is necessary to keep the state free (from tyrannical and oppressive government).

      2. “…the right of the people to keep and bear Arms, shall not be infringed…” (so that those armed people may militarily oppose a tyrannical and oppressive government (with arms sufficient to the task).
      ________________________________________________________

      2nd Amendment

      “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
      ________

      14th Amendment
      Section 1

      “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”

    3. militia was early defined in federal law as all male citizens of age to bear arms. words have meaning

      militias were also state entities until the Defense act of 1016. since the state mliitias can be federalized, the antigunner’s preferred reading of the second amendment would render it “nugatory”

      the scheme of rights in the constitution is simple. essentially individual rights (those of “The people”) then state rights, then the enurated federal powers, which is what the constitution was really all about,. otherwise it would not have been needed.

      now if there state mlitiias can be nationalized, and the word “people” in the second amendment is ignored, then it’s like eating away at the apple until only the stem and seeds are left.

      the antigun reading grants the federal government plenary power over guns, just “BECAUSE”

  3. Illegal aliens and the children of illegal aliens born in the United States are not subject to the JURISDICTION of the United States.

    Illegal aliens and the children of illegal aliens born in the United States are not subject to the MILITARY DRAFT of the United States.
    _______________________________________________________________________________________________________

    14th Amendment
    Section 1

    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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    1. This language is in reference to the emancipated slaves living in 1868. There was was no controversy at the time about how babies got their Citizenship….that was a settled issue going back to the Founding.

      If you truly believe the 14th Amendment established birthplace citizenship, explain how and when Abraham Lincoln became a US Citizen.

      1. And, why the 14th Amendment did not apply to Native Americans and a few others except on a case by case basis for decades.

      2. If a person is not subject to the military draft of the U.S., that person is not subject to the jurisdiction of the U.S.

        They are not citizens by birthright citizenship because they are not subject to the jurisdiction of the U.S.

    1. “Guest Workers” who go home after completing their tasks. Completely constitutional. The Rolling Stones just played a concert in the U.S.

  4. If you are listening carefully, the families who are put into split-status by a misapplication of the 14th Amendment have ben robbed of peace-of-mind. How can there be a senses of security when a US Citizen child has deportable parents?

    This effect of how the 14th Amendment has been misinterpreted violates Family Cohesion as a fundamental principle of immigration law.

    By comparison, look at the pathway to US Citizenship for immigrant children defined in the INA Law. The child automatically becomes a Citizen on the same day their parent swears allegiance to the United States in a solemn Naturalization ceremony. This law was consciously designed to maintain same status within the family. This pathway for children is called “citizenship by derivation”.

    And, this pathway (and the principle of family cohesion) obtains its Constitutional force from Article I, Section 8, which gives Congress exclusive power to design all pathways to citizenship.

    I believe the highest chance of success for an Exec. Order lies in staking out the purpose of Family Cohesion as a key Guiding Principle in immigration law, and the primary rationale for the Exec. Order. This is a much stronger starting position than fighting over the technicalities of Constitutional interpretation, or the meaning of “jurisdiction”.

    Family Cohesion is compassionate and caring towards the psychological security of the family unit, as well as streamlining the administration of the law. It is a unifying goal for all immigration policies — to never split-status within the family. The Admin can even state in the E.O. the goal of finally resolving split-status within existing families as a project to be undertaken by Congress.

    A high-minded goal, one that satisfies common sense, is the place to put a stake in the ground with an Exec. Order on Pathway to Citizenship for Children.

    1. Children born in the U.S. and not “…subject to the jurisdiction thereof,…” are not citizens of the U.S.

      Children born in the U.S. and not “…subject to the…” military draft are not “…subject to the jurisdiction thereof,…” and are not citizens of the U.S.

      If the child of an illegal alien born in the U.S. is not subject to the military draft, that child is not “…subject to the jurisdiction thereof,…” and is not a citizen.

      What part of “…subject to the jurisdiction thereof,…” do you not read or understand?

      It’s just like Article 1, Section 8 provides Congress the power to tax merely for “…general Welfare…” not individual welfare making redistribution of wealth unconstitutional. The entire American welfare state is unconstitutional and children born in the U.S. of illegal aliens are not “…subject to the jurisdiction thereof,…” and are not citizens of the U.S. That is the “manifest tenor” of the Constitution.
      __________________________________________________________________

      The singular American failure is the judicial branch with emphasis on the Supreme Court.

      People and courts must implement the clear and obvious, meaning and intent of the literal words of the Constitution.

      “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton

  5. (music to the tune of Henry the 8th)

    Betsy Rose was a whore and got knocked up while on the floor..
    The dad was a Jap and we were still in war…
    The kid came out with a big fat scar…
    And all proclaimed him a citizen!
    He wouldn’t be a Willy or a Fred.
    For there ain’t no band of criminals..
    Who can’t yell Free At Last!

  6. Pregnant female Russian KGB agents in the U.S. are about 7 months due. And will take over the U.S. without a single shot being fired.

    1. We don’t need the KGB and Russian agents to bring down America anymore, Alexander.

      We have members of the NEA, college professors and the Democrat Party doing a better job replacing American values with Communism than the KGB ever did.

      At worst, we are one election away from losing America or at best one generation unless Donald Trump and a few remaining Patriots can turn us around.

  7. Of course it isn’t wrong much less racist. Having an opinion is part and parcel of being an objective self governing citizen. One could say knee jerk answers to everything such as ‘racist’ is the probable product of a public school social promotion. Except ‘jerk’ does fit nicely… objectively speaking.

  8. Let’s see, the Russia collusion investigation failed, if there is no great economic catastrophe in the next 2 or 3 years then the left will have to go back to calling Trump and his minions racist, good old reliable accusations from our liberal friends. If all else fails, go back to square one.

  9. So we have a movement seeking to undermine the economic order, the constitutional order, the definition of citizenship, the federalism order, the rule of law, the security of borders, the Bill of Rights; all of which have defined this country in a way that makes us unique among nations. An effort of this magnitude undertaken by the likes of Russia or China or any other foreign entity would be seen as what it is, a threat to our national security. And anyone in our country aiding and abetting these foreign threats would be rightly called Traitors. But because this movement is driven domestically, with the support of the media, academia and a major political party, well then we’re supposed to perceive this threat as a moral imperative. Anyone opposing this movement is being characterized as white-supremacist, nationalist, racist, bigot, yada, yada, yada.

    This is our 21st House Divided moment and we need to boldly declare this movement for what it is: a threat to our national security. And those participating in it as enemies of the state. Traitors!

    1. Because it doesn’t fit the agenda of those in control who want to “fundamentally transform America”. If they go by the Constitution and the law, they have nothing to support their continued existence.

      The DNC aka the Communist Party USA are against every legal and moral principle which created the US so they must create false narratives and a hatred for our Founding Fathers, our entire history and the moral and legal principles upon which they are built.

  10. Lawrence Tribe is well past his buy by date. I wonder if he is suddenly trying to compete with Joe Biden’s intellectual disabilities?

    1. “Lawrence Tribe is well past his buy by date.”

      That’s pretty good. And I don’t think I can argue with it.

  11. I predict two things will happen to JT very soon.

    1. JT will lose his liberal card. Doesn’t matter that he holds liberal positions on most issues. Being a good, “woke” leftist requires total or almost total conformity. As with the National Review and Heritage Foundation, I’m afraid JT will not be allowed to make a separate peace with left either.

    2. JT will be called a fascist for having traditional opinions on the First Amendment. I am waiting for the first poster on this site or media person to refer to him as such. Remember as said by the antifa scum, “Your speech is VIOLENCE and our reaction is self-defense”.

    On a side note, wonder why anifa don’t show up at Bikers for Trump rallies or where they are not allowed to wear masks?

    Another saga in the Cold Civil War.

    I want a divorce and my grandchildren will make that happen.

    antonio

  12. Joe Morgan nails it on his podcast with Rep. Dan Crenshaw

    “It’s [about the left’s] desire to divide everyone into three categories: oppressed, oppressors, and champions of the oppressed. And the “woke culture” is the champions. That is how they label themselves. They label their intersectional coalition as the oppressed. And then they have this whole other intersection coalition of oppressors. And they connect it all with the worst of the worst.”

    That’s why if you like lower taxes, you hate the poor. Or if you think men shouldn’t compete in women’s sports, you’re a transphobic homophobe. Which is fine, because you also hate women for a list of other reasons. You are “literally” a nazi if you support free speech. Ignoring that actual nazis opposed free speech. The New York Times #1619Project is basically a scheme to tie every policy liberals don’t support to slavery and racism.

    @3:40

    1. You are pandering which is what all Dims do because they have nothing to offer.

      You are Woke but actually just seek Power to control others just like Josef Stalin, Mao, Pol Pot, Adolf Hitler, etc. Like Bill Maher you relish killing and causing suffering to all of your “enemies”.

    2. Justice Holmes – I would posit that those defending birthright citizenship are racist and their motivation is racist.

    3. Stop trying to impugn the motives of your opponents. It’s not the slightest bit persuasive. In the world of collaborative design and problem-solving, it is a no-no.
      Same in Civics 101. It’s unproductive.

  13. Two responses

    1) I read Garrett Epp’s book on the 14th Amendment, and in 1865 there was a lot of push back in Congress during the amendment’s debate that we were a “white man’s” country. Racism is in our DNA—think about the Insular Cases that decided that territories full of non-whites were not “incorporated” into the US and the Constitution applied selectively there. Remember Black Codes! Jim Crow!

    2) What becomes of the American dream? The American experiment?

    Ok, Professor Turley. Fast forward 20, 30, 40 years. Now, we have a nation of 500 million with a large percentage of “residents” who do not enjoy full “privileges and immunities” of the Constitution. Will we live in a country that professes freedom, liberty, equality, democracy (what the Founders would call ‘republicanism’), and yet millions live in a sub-citizen status? (Think pre-1865 America!)

    How do those descendants become “Americans?” Do they ever?

    We are not alone. Given climate change, economic dislocation, collapse of oppressive regimes around the world, millions of people are moving to new homes, seeking a better life! Just like the people who flooded into the “New World,” as our continent was called in the 17th, 18th, and 19th centuries!

    1. yeah climate change and economics is sending another 10-100 million our way in the next few years we can be sure. which is why it’s time to get tough. MG nests at the border if necessary, cancel welfare for illegals, ramp up the deportations. american taxpayers can’t afford to fix the entire world’s problems by importing them inside america on two feet!~

      and fix this birthright citizenship thing. it’s senseless except to feed the desire for cheap labor and cheaper votes

  14. The New York Times failed with its Trump-Russian project and now it is going to fail with its “racist America” project.

    Zoë Baird problem

    liberal Democrats enslave illegal immigrants

    Kimba Woods

    Bill Clinton circa 1993: Nannygate

    Liberals/Democrats enslave Blacks on welfare to keep them in Congress with a cycle of dependence. It worked for Barack Obama far too well

      1. You disagree with me which makes you a Racist

        See how that works?

        You wouldnt understand since you are a Rrrraaaccccist!

        LoL

        Gosh this is kinda fun!
        Now I see why you leftists do it

        Racist!

        1. A racist is someone who disasgees with a leftist on any aspect of social policy or who is merely winning an argument with such a person.

          It means EVERYTHING and means NOTHING.

          The word is meant to slur, not enlighten, an argument stopper, a “shut up’ word.

          The word didn’t even exist until invented by Leon Trotsky, that great enlightened leader of world communism.

          Lefties – I warn you, the day is coming when that dog won’t hunt anymore and when it does…

          antonio

          1. Ironic that that is also the identical definition of a “hater” a “Nazi”, a “fascist”, and a “xeno- homo- Islamo- and every other ‘phobe'”.

            Leftists never need a dictionary to define the meaning of their propaganda. It all has the same definition. Essentially, Conservatives bad. Orange man bad.

  15. One can argue that opposing birthright citizenship is not limited to racists, as JT does, without pretending that is not what motivates Trump. The evidence suggests otherwise.

    1. The Collective strikes again but the programmer for the machine part still needs a good dose of rust remover. REJECTED..

    2. “Evidence” devoid of fact is not evidence. It is propaganda. You are what Communists call a “useful idiot” and will be one of the first to die if Socialists truly gain control. They will have no use for you once they gain power.

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