Below is my column in the Hill on the expected reaffirmation of birthright citizenship by the Supreme Court after the oral arguments in Trump v. Barbara. The question raised in the column is whether such a decision should be the final word on the subject or whether we should have a national debate on a possible new citizenship amendment. Some countries among the minority recognizing birthright citizenship had such debates and decided to reject it. Polls indicate that most Americans support birthright citizenship. If so, an amendment would obviously fail. However, it may be time to have such a national debate.
Here is the column:
“Well, it’s a new world. It’s the same Constitution.”
Those words from Chief Justice John Roberts during this week’s oral arguments signaled that the conservative justices are unlikely to reject birthright citizenship. Of course, nothing is certain until this summer when the Court issues its opinion in Trump v. Barbara. However, we need to consider the need for a 28th Amendment to reaffirm the meaning of citizenship.
As some of us stressed before the oral argument, the odds were against the administration prevailing in the case, given more than a century of countervailing precedent. There are good-faith arguments against reading the 14th Amendment as supporting citizenship for any child born in this country. It is doubtful that the drafters of the 14th Amendment could have envisioned millions of births to illegal aliens. They surely did not imagine foreigners coming to this country for the purpose of giving birth — or even, without ever entering the U.S., contracting multiple U.S. residents to carry babies to term for them as surrogates.
The historical record is highly conflicted. Some drafters expressly denied that they intended for birthright citizenship to be covered by the 14th Amendment.
The rampant abuse in this country and the widespread rejection of birthright citizenship by other countries (including some that once followed it) did not seem to impress the conservative justices. Roberts’s statement was in response to Solicitor General John Sauer’s argument that “We’re in a new world now … where eight billion people are one plane ride away from having a child who’s a U.S. citizen.”
Although President Trump has lashed out with personal attacks on the conservative justices as “disloyal” and “stupid,” they are doing what they are bound by oath to do: apply the law without political favor or interest. I expect most of the justices agree with the vast majority of countries — and the president — that birthright citizenship is a foolish and harmful policy. But they are not legislators; they are jurists tasked with constitutional interpretation.
Trump appointed three principled justices to the court. To their (and to his) credit, Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett have proven that they are driven by the underlying law, not the ultimate outcome of cases.
For conservatives, constitutional interpretations offer less leeway than their liberal colleagues or believers in the “living constitution.” If you believe in continually updating the Constitution from the bench to meet contemporary demands, constitutional language is barely a speed bump on your path to the preferred outcome in any given case.
In my Supreme Court class, I call this a “default case” in which justices tend to run home. When a record or the law is uncertain, conservative justices tend to avoid expansive, new interpretations. That was precisely what Trump said he wanted in nominees.
These justices are not being “disloyal” to him, but rather loyal to what they view as the meaning of the Constitution. I have at times disagreed with their view of the law, but I have never questioned their integrity.
None of this means we should accept the expected outcome in this case as the final word on birthright citizenship. Justice Robert Jackson once observed that he and his colleagues “are not final because we are infallible, we are infallible because we are final.”
The final word actually rests with the public. We can amend the Constitution to join most of the world in barring birthright citizenship. There is no more important question in a republic than the definition of citizenship.
We are becoming a virtual mockery as we watch millions game the birthright citizenship system. China alone has hundreds of tourism firms that have made fortunes in arranging for Chinese citizens to come to U.S. territory to give birth and then return home.
No republic can last without controlling its borders and the qualifications for citizenship. We have allowed U.S. citizenship to become a mere commodity for the most affluent or unscrupulous among us.
The combination of open borders and open-ended citizenship can be an existential threat to this Republic. It is not that we cannot absorb millions of births, but rather that no republic can retain its core identity without more clearly defining and controlling the meaning of being a citizen.
The U.S. is and will remain a nation of immigrants. We welcome lawful immigrants who come to this country to embrace our values and our common identity. But being a nation of immigrants does not mean that we are a nation of chumps.
In my book, “Rage and the Republic: The Unfinished Story of the American Revolution,” I discuss the foundations of our republic and the world’s fascination with it. After our Revolution, one leading Frenchman known as John Hector St. John wrote a popular book that asked: “What then is the American, this new man?”
The answer to that question was obvious at our founding. We were the world’s first true enlightenment revolution — a republic founded on natural rights that came not from the government but God. We did not have a shared bond of land, culture, religion, or history. We were a people founded on a legacy of ideas; a people joined by common articles of faith in natural, unalienable rights.
The question is whether we can answer St. John’s challenge today. “What then is this American” if citizenship can be based on as little as a tourist visa or an illegal crossing?
There would be no better time to reaffirm the meaning of citizenship than the 250th anniversary of our Declaration of Independence. Roberts is correct: “It is the same Constitution” that created this republic, but we are the same people vested with the responsibility, as Benjamin Franklin put it, “to keep it.”
It is time to reclaim both the Constitution and our common identity. As a free people joined by a common faith in natural rights, it is our own birthright.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
We don’t need an Amendment. Congress makes Citizenship eligibility law, authorized by Article I, Section 8, Clause 4.
History proves Congress can overturn Supreme Court precedent in Citizenship eligibility:
1866: Civil Rights Act gave prior slaves US Citizenship with full rights, overturning the 1857 Dred Scott case.
1924: Indian Citizenship Act gave eligibility to Native Americans, defying the 1886 Elk V. Wilkins case.
The only argument for a Constitutional Amendment is “insurance”. The 14th Amendment was just that — the Reconstruction Congress didn’t want a Democrat-majority Congress to later come along and turn back the clock. Again, that is a clear admission Congress has the power to write (and rewrite !) Citizenship Law.
If Congress restricts eligibility for automatic citizenship at birth BY STATUTE, there will still be a path to Citizenship for children whose parents come legally with permanent visas (Citizenship by Derivation). We’d have the option to Constitutionalize that change if blue states resolved to defy the new law. But, as in 1866, you pass the law first, then wait to see if it is accepted in practice.
You don’t go immediately to insurance because a Constitutional Amendment takes much longer and isn’t necessary legally.
Some Constitutional law professors will undoubtedly disagree.
Cornell law has the transcript of Wang Kim Ark arguments and the SCOTUS opinion, 6-2 with chief Justice Fuller and Justice Harlan dissenting. Well worth reading with 20/20 hindsight.
Peace
It may also be the green card/permanent resident is faster than immigration. The green card holder is looking for a short cut and may never naturalize and yes, naturalization is the only avenue for the green card holders children to obtain birthright.
It’s a scam of expediency. The gree
^^^ the green card holder maintains foreign citizenship and loyalty while falsely obtaining dual citizenship for offspring. Immigration is constitutional.
Reza Pahlavi chose the US in exile and his father the Shah also. There is no pretense of citizenship nor claims as he intends to return to the land of his birth and establish a democracy.
Under Biden 5 million new green card holders? More popular than immigration? Quite a mess.
There were 5 million available jobs? Repackaging products from foreign nations in half quantities is big business. What is done with actual Dawn liquid soap because this isn’t it.
Tragedy, true tragedy, our children murdered.
Go pretend it isn’t true.
Is the newborn baby the problem? Or is it the chain of family members that we are required to support? Nobody goes to the trouble to give birth here, except that the baby enables lifelong benefits for its relatives.
Sort of like the term “well-regulated” in the 2nd Amendment.
The militia in the 2nd Amendment was led and governed by the state’s governor or the current president (with the governor’s permission). The state government controlled the militia similar to a National Guard unit.
It’s likely the Framers viewed non-military gun rights (hunting, target shooting) as a 9th Amendment right. An existing unnamed right that didn’t need to be listed.
As far as the 14th Amendment, many voters still believe Trump violated Section 3 of the 14th Amendment – so he was never qualified to hold governing authority ever again. Trump planted doubt months before the election results in November 2020 and made false claims of voter fraud. Then Trumps asked the Georgia Secretary of State for 11,000 votes. Then Trump lost over 60 court cases.
Trump manufactured this false narrative before November 2020 and his supporters then illegally broke into the U.S. Capitol building and assaulted police officers on January 6. Some supporters brought bear spray, long rifles, a functioning gallows threatening to hang Mike Pence and stockpiled weapons at nearby hotels.
Do Trump supporters really want to play legalese on what words and laws actually mean?
After all your legalese?…no, go away
Half truths.
I have spent hours read the statements of the 14th amendment authors, and their explanations of the phrasing in the amendment. As well as studying the amendment itself.
I don’t see how anyone can believe they intended today’s situation, when their comments, and the amendment text itself, clearly say the opposite.
If your parents are not US citizens, you are not a US citizen, no matter where your mother happened to be the moment you popped out.
The best evidence for your claim becomes obvious when you ask this question:
“Before the reinterpretation of the 14th Amendment in the Wong Kim Ark case, how did children of immigrants obtain their citizenship?”
From the very beginning in 1790, Congress defined a pathway for immigrant children called Citizenship by Derivation — those children under age 21 automatically became Naturalized citizens on the same day their parents became Naturalized. Derivation was common sense, since it didn’t split family status based on a birth.
Nobody questioned the good sense of this policy until the 1898 Wong Kim Ark case.
What that means is that, Citizenship by Derivation was not a bit controversial during the Reconstruction Era lawmaking. Nobody who Ratified the 14th thought they were changing how immigrant children became citizens.
No immigrant parents still awaiting their Naturalization tried to claim citizenship at birth for their newborns.
So, how can it be claimed that “persons born in the United States…” referred specifically to newborns getting citizenship at time of birth? There was an established process saying, “Wait until your parents Naturalize”, and everyone followed it, unaware that anything had changed. What “persons born…” referred to was persons already living (adults and children) in 1968. It was inclusive language to rope in the previous slaves and children. It Excluded all people living in other nations from becoming US citizens, by making it “subject to the jurisdiction thereof”.
The policy of indiscriminate Birthplace Citizenship was never Ratified. You cannot change the meaning and impact of the Constitution without mustering broad public consensus for the changes through a Ratification process. Article V. That means there are limits on changing the Constitution by ignoring what the Ratifiers thought they were improving.
The real problem in the Ark case is permanent residents. It created an alternate route for immigration and used today rather than immigration. Horace Gray legislated from bench. Permanent residents is faster and secondly Gray created the birthright for children of noncitizens. Arks family went back to China and didn’t intend to naturalize.
It’s Horace Gray’s legislation and SCOTUS should overturn it, pb. The immigration process is circumvented. That’s how we got here.
Lesson- justices, judges do NOT legislate.
The answer to this is really quite simple. Pass Federal regulations that ALL Hospitals receiving federal tax dollars or insurance subsidies are declared open border areas, such as International airports or maritime ports. A child born in an open border designated area acquires the citizenship of their mother and father’s origin, the way it should be.
Turley writes “There are good-faith arguments against reading the 14th Amendment as supporting citizenship for any child born in this country.”
What a straw man. No one argued ANY child born here is a citizen. Children of diplomats have always been clearly excluded.
That’s not a strawman but you just might be.
JT has (as usual) fallen into a dichotomization trap. Maybe his attention lapsed during Justice Kavanaugh’s questioning of the plaintiff’s lawyer. He cleverly outlined a middle path for deciding this case that would be win-win for the Ms. Barbara and for the majority of the public who want birthplace citizenship reform.
It comes down to the question of “Who decides Citizenship policy?”
Kavanaugh got ACLU’s Cecellia Wang to agree to accept a “win” for her client where the determinative law cited would NOT be the 14th Amendment, but rather the exact recitation of the Citizenship Clause in Congressional Statute (INA Section 1401(a). I’m sure her ACLU colleagues were wincing at this on-the-spot negotiation — the turning point in the Oral Argument.
Kavanaugh reminded his peer Justices of the SCOTUS rubric to steer away from Constitutional interpretation if a case can be determined by Statute. All Kav has to do is bring 4 other Justices along to this convention.
The impact is huge for we the majority who want order brought to our Citizenship processes. It means the Supreme Court is saying “Congress decides Citizenship eligibility policy, not the Executive, and not us.” Kav’s way of disposing of this case creates a precedent where the Federal Courts defer to Congressional Statute on matters of automatic birthplace citizenship. It invites The People to elect a Congress that will enact its will.
That could be currently pending HR 569. Or, it might take the next Congress with re-elected Republican control.
Most Court watchers already predict Ms. Barbara will win her case and Trump will lose. That’s just a consensus that the President didn’t have powers under the Constitution to revise Citizenship Law. The more momentous outcome is which determinative law is cited — answering “Who decides?” — Congress or the Courts?
I don’t think there are 5 votes to permanently strip The People through their Congress of powers explicitly given them in Article I, Section 8, Clause 4 to “devise a uniform rule of Nationality”. I think the majority will steer a middle path and back Congressional Statute as determinative.
In that outcome, we DON’T need a Constitutional Amendment to bring common sense to Citizenship policy reform.
And that would be a huge win.
Pbinca 😂 you’ve made life harder. INA and Kav. Well, 3 and kav makes 4 plus Barrett makes 5?
1952? I do see Harris returned for 2 years before age 18? Or something like that.
Carpe diem, thanks pb.
Waiting and the weather and flowers are beautiful. ☺
Yes, permanent resident is replacing naturalization. The children of permanent residents are birthright as were naturalized citizens children. Permanent residents are the new immigration plan. The water’s getting warm.
No problem deportation for parents. No having to learn English. Swear allegiance deleted for permanent residents or children…etc.
Mission accomplished Justice Horace Gray.
Costco sells Halal foods but no kosher.
Thanks pbinca
What’s needed is tax reform to solve this dilemma and not immigration or citizenship law changes. Develop two sets of IRS documents. Federal tax forms for “Inclusive” filers, the “I” Forms; and separate ones for “Exclusive” filers – the “E” Forms. All government expense caused by or associated with expanding programs to cover illegals both home and abroad will be apportioned to “I” filers to cover. The “E” filers will share the burden limited to the cost of government to cover citizens only. Problem solved. Especially in the eyes of those that want to give everything away. They can feel good about themselves and be very proud at the same time as they shoulder the burden they have created.