Thread: We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship

By John C. Eastman — August 24, 2015

Birthright citizenship has exploded into the national discourse. The issue is generating a lot of heat on the Republican side of the aisle in particular, because it threatens to expose the long-standing rift between the party’s base and its pro-crony-capitalism establishment.

Unfortunately, in arguing that the 14th Amendment requires citizenship for the children of illegal immigrants, some of the more prominent interlocutors are promoting an incorrect understanding of history. The Wall Street Journal’s recent editorial on the matter is a case in point, and my good friend John Yoo’s NR essay repeats one of the same basic flaws.

The first clause of the 14th Amendment provides that “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 Journal thinks the meaning is “straightforward”: “Subject to the jurisdiction” covers everyone born on U.S. soil (except the children of diplomats and invading armies), because “‘jurisdiction’ defines the territory where the force of law applies and to whom — and this principle is well settled to include almost everyone within U.S. borders, regardless of their home country or the circumstances of their birth.” It then states: “By the circular restrictionist logic, illegal immigrants could not be prosecuted for committing crimes because they are not U.S. citizens.”

Professor Yoo makes the same claim (absent the ad hominem word “restrictionist”): “Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment.”

This claim plays off a widespread ignorance about the meaning of the word “jurisdiction.” It fails to recognize that the same word covers two distinctly different ideas: 1) complete, political jurisdiction; and 2) partial, territorial jurisdiction.

Think of it this way. When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a “temporary sojourner,” to use the language employed by those who wrote the 14th Amendment, and not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment.

The same is true for those who are in this country illegally. They are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the 14th Amendment as a precondition for automatic citizenship. It is just silliness to contend, as the Journal does, that this is “circular restrictionist logic” that would prevent illegal immigrants from being “prosecuted for committing crimes because they are not U.S. citizens.”

Moreover, contrary to Professor Yoo’s contention, the text elsewhere in the 14th Amendment supports this distinction. Unlike the Citizenship Clause, which uses the phrase “subject to the jurisdiction,” the Equal Protection Clause bars a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.) The phrase “within its jurisdiction” is territorial, whereas the phrase “subject to the jurisdiction” is political.

There were no restrictions on immigration in 1868 when the 14th Amendment was being drafted and ratified, so there was no debate on whether the Citizenship Clause confers automatic citizenship on the children of illegal immigrants. But we do have debate on the analogous circumstance of Native Americans who continued to owe allegiance to their tribes. One senator — exhibiting the same confusion today exhibited by the Journal — asked Senator Lyman Trumbull, a key figure in the drafting and adoption of the 14th Amendment, whether Indians living on reservations would be covered by the clause, since they were “most clearly subject to our jurisdiction, both civil and military.”

Trumbull responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “not owing allegiance to anybody else.” And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now” — that is, under the 1866 Civil Rights Act, which the 14th Amendment was intended to codify. That act made the point even more clearly: “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.” (Emphasis added.) As the debate over the 14th Amendment makes clear, the shift in language from the 1866 Civil Rights Act to what became the Citizenship Clause of the 14th Amendment was not intended to provide citizenship to the children of illegal immigrants, but rather to shift away from the “not subject to any foreign power” language out of recognition that the Indian tribes were not foreign powers but domestic (albeit dependent) powers. As Senator Howard explained, the Citizenship Clause 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.”

The leading treatise writer of the day, Thomas Cooley, confirmed this was the understanding of the 14th Amendment. As he wrote in his treatise, The General Principles of Constitutional Law in America, “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

When the Supreme Court first addressed the Citizenship Clause in the 1873 Slaughterhouse Cases, both the majority and dissenting opinions recognized this same understanding. The majority in that case correctly noted that the “main purpose” of the clause “was to establish the citizenship of the negro” and that “the phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” (Emphasis added).

That language in Slaughterhouse was dicta (a comment not strictly relevant to the decision), but it became holding a decade later in the 1884 case of Elk v. Wilkins. The Supreme Court held in that case that the claimant — a Native American born on a tribal reservation — was not a citizen because he was not “subject to the jurisdiction” of the United States at birth, which required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Elk did not meet the jurisdictional test because, as a member of an Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States. Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,” “they were alien nations, distinct political communities,” according to the Court, thereby making clear that its holding was about allegiance and not the reservation’s geographic territory. Then, drawing explicitly on the language of the 1866 Civil Rights Act from which the 14th Amendment was drawn, the Court continued: “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.”

Professor Yoo is therefore simply mistaken in his claim that “the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory.” In fact, it has never held that the children born on U.S. soil to parents who are in this country illegally are citizens. In the 1898 case of Wong Kim Ark, the Court simply held that a child born of Chinese immigrants who were lawfully and permanently in the United States — “domiciled” here, to use the Court’s phrase — was a citizen. Language in the opinion that can be read as suggesting that birth on U.S. soil alone, no matter what the circumstances, confers automatic citizenship is pure dicta, because no claim was at issue in the case other than whether the child of lawful, permanent residents was a citizen.

Professor Yoo’s contention to the contrary overlooks the Court’s use of the word “domiciled” in describing the nature of Wong Kim Ark’s relationship to the United States. “Domicile” is a legal term of art; it means “a person’s legal home,” according to Black’s law dictionary, and is often used synonymously with “citizenship.” Wong Kim Ark’s parents were not allowed to become citizens because the U.S. had entered into a nefarious treaty with the Emperor of China that refused to recognize their natural right to emigrate, but they were “domiciled” in the United States, which is to say, lawfully present in the United States. The holding of the case, as opposed to its broader dicta, does not mandate citizenship for children born to those who are unlawfully present in the United States, and it does not even mandate citizenship for those who are visiting the United States temporarily but lawfully. In both cases, the children, through their parents, retain allegiance to their parents’ home country — to a “foreign power,” to return to the language of the 1866 Civil Rights Act. They are therefore not “subject to the jurisdiction” of the United States in the way intended by the 14th Amendment, and therefore not automatic citizens.

As I said, no Supreme Court case has held otherwise. Wong Kim Ark did not so hold. Neither did Plyler v. Doe in 1982, contrary to the Journal’s assertion; the relevant language in that case is simply a footnote for comparison with the Equal Protection Clause, and pure dicta.

Professor Yoo’s description of the debate between Senators Cowan and Conness likewise misses the point. Cowan asked whether the Citizenship Clause would confer citizenship upon the children of Chinese parents who were living in California, or the children of Gypsies living in Pennsylvania. “Have they any more rights than a sojourner in the United States?” he asked. He was attempting to draw a distinction based on race or ethnic background, not on lawful versus unlawful presence in the United States, or even on permanent versus temporary presence. It was for that reason that Conness began his reply by stating that he failed to see what relation Cowan’s question had to do with the Citizenship Clause.

Conness then responded that automatic citizenship would be available to the “children begotten of Chinese parents in California” just as existed under existing law — that is, the 1866 Civil Rights Act, which extended citizenship to “all persons born in the United States, and not subject to any foreign power.” That guarantee was available no matter the ethnic background of the parents — we were not extending citizenship only to the descendants of white Europeans — but his response did not suggest that the children of those who were not lawfully present in the United States, or who were mere temporary visitors, would be automatic citizens. Indeed, Cowan’s own question — “Have [the children of Chinese or Gypsies domiciled in the United States] any more rights than a sojourner?” — demonstrates that he was also aware of the distinction between territorial and political jurisdiction. For the debate to support Professor Yoo’s position, Conness would have had to respond that even the children of sojourners would be entitled to automatic citizenship. There is not a hint in his response to suggest such an answer, nor in any other part of the entire debate.

So, truth be told, the 14th Amendment does not need to be repealed in order to fix the problem of birthright citizenship for the children of illegal immigrants. It just needs to be understood and applied correctly. The Journal’s contention that conservatives who insist upon this understanding of the law “are promising a GOP version of President Obama’s ‘illegal amnesty order’” could therefore not be further from the truth. Constitutional originalism requires that we give effect to the public meaning of the words actually used, even if the Wall Street Journal would wish the meaning were otherwise. And the Journal’s further contention that anyone who wishes to see the 14th Amendment faithfully applied is claiming “that some people are not real Americans and have no right to be,” is simply another ad hominem attack and mischaracterization not worthy of an otherwise great newspaper.

Finally, let me close with some agreement with Professor Yoo’s soaring rhetoric at the end of his piece, much of which is entirely true. Yes, “rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party.” And yes, “It was the Republican party that opposed Dred Scott.” And yes, “It was the Republican Party that fought and won the Civil War.” And definitely yes, “it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race.”

But the 14th Amendment did not do away with sovereignty. It did not do away with the importance of citizenship, or with the idea, rooted in the Declaration of Independence, that legitimate governments are grounded on the consent of the governed. Birthright citizenship, as currently practiced, allows those who continue to owe allegiance to a foreign power to demand American citizenship for their children, unilaterally and as a result of their illegal conduct. Those who oppose such an abuse do not support Dred Scott. They are drawing distinctions based not on race, but on the rule of law.

Professor Yoo need not worry, therefore, that applying the 14th Amendment faithfully would “discard one of the greatest attributes of American exceptionalism.” The welcome mat to American citizenship is open to anyone in the world regardless of race or ethnic background, as long as they adhere to the legal rules set out by Congress for immigration to this country.

— John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former dean at Chapman University School of Law. He also serves as the director of the Claremont Institute’s Center for Constitutional Jurisprudence.

http://www.nationalreview.com/articl...14th-amendment

Related:

http://www.alipac.us/f13/birthright-...astman-322497/

http://www.alipac.us/f13/birthright-...8/#post1470948

by Ken Klukowski
25 Aug 2015
Washington, D.C.

Conservative Republicans have been saying for years that the Constitution only guarantees birthright citizenship to some children born in this country, not to all. In an unlikely turn of events, the Fourteenth Amendment’s Citizenship Clause has emerged from the halls of the law-geeks to come front-and-center in the national dialogue.

As we have mentioned in the previous three reports in this series, the Constitution says that a person is an American citizen if when he is born here he is “subject to the jurisdiction thereof.” The issue is whether illegal aliens’ “anchor babies” are “subject to the jurisdiction” of the United States, or instead if Congress’s current immigration law granting them citizenship is broader than the Constitution requires.

Professor John Eastman points out this week in National Review that even the text of the Fourteenth Amendment suggests the being “subject to the jurisdiction” of the United States does not merely mean being physically present in the country to be under our laws. Because later in Section One of the Fourteenth Amendment, the Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

When referring to persons inside America’s borders, it refers to them as “within its jurisdiction,” rather than the Citizenship Clause’s language that birthright citizenship is for persons who at birth are “subject to the jurisdiction” of the United States. The former refers to location, while the second refers to political allegiance.

Scholarship from Eastman and Professor Lino Graglia regarding the congressional debates of those who wrote and proposed the Fourteenth Amendment, also referenced earlier in this series, sheds more light on the Constitution’s text. Senator Lyman Trumbull (R-IL) explained that “subject to the jurisdiction” of the United States meant “complete” jurisdiction, which Trumbull elaborated meant a person “not owing allegiance” to any foreign nation or foreign ruler. Senator Jacob Howard (R-OH) agreed with Trumbull’s speech, adding immediately afterward that the kind of jurisdiction the Citizenship Clause spoke of was the sort of undivided allegiance to the American nation “in extent and quality as applies to every citizen of the United States now.”

The Supreme Court’s first discussion of the Citizenship Clause came from the Slaughter-House Cases in 1873, one of the most consequential cases ever decided by the Supreme Court, for better or for worse, for reasons I explain in my own academic legal work (which I published with New Mexico Law Review) and which Breitbart News will discuss in a forthcoming report in this series. In Slaughter-House—which was decided merely five years after the states ratified the Fourteenth Amendment—the Court explained that “the phrase ‘subject to the jurisdiction’ was intended to exclude from [birthright citizenship] children of … citizens or subjects of foreign States born within the United States.”

Breitbart News has already discussed how the Supreme Court reaffirmed this view by making this statement part of the Court’s holding in its 1884 Elk v. Wilkins case—decided eleven years after Slaughter-House—concluding that this proviso even excludes the children of American Indians born on Indian reservations because even though born on U.S. soil, their allegiance would be divided between the American nation and their Indian tribe, which was quasi-sovereign, almost as if it were an independent nation. The Court reasoned that the Citizenship Clause thus applies only to a child “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, not owing them direct and immediate allegiance.”

Those who remember the pro-amnesty rallies held in major cities in 2006 and subsequent years need no explanation of what “complete” or “direct and immediate” means when it comes to “allegiance.” Marchers waving the Mexican flag and chanting, “Si, se puede” (“Yes, we can”) were proudly flaunting the fact that they owed at least part of their national allegiance to Mexico, not the United States. And ironically, Mexico’s political pressure on the American government regarding immigration policy illustrates that many illegal aliens are not exclusively subject to the political jurisdiction of the United States, as a foreign power was advocating on their behalf because it claimed them as citizens. Children of those who refuse to commit themselves wholly to the United States of America as their one and only home nation are precisely the sort of people whom Slaughter-House, Elk, Trumbull, Howard, and other Framers of the Fourteenth Amendment meant when they explained who was not entitled by that constitutional amendment to birthright citizenship.

Graglia observes, “It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducements to illegal entry.” He then adds of those who adopted the amendment, “They could not have considered the question of granting birthright citizenship to children of illegal aliens because, for one thing, there were no illegal aliens in 1868.” It had not yet been made a crime to enter the U.S. illegally, so the provision could not have contemplated those who later would.

Both professors weigh in the Supreme Court’s 1898 case United States v. Wong Kim Ark, which Breitbart News has referenced previously and which will be the exclusive focus of a forthcoming installment in this series. That was the case where the Court held that the Citizenship Clause conferred citizenship on the son of permanent, legal Chinese immigrants who were not citizens. “It is that erroneous interpretation of the Citizenship Clause, adopted 30 years after adoption of the Fourteenth Amendment, that has colored basic questions of citizenship ever since,” Eastman contends.

Graglia adds the crucial point that even Wong Kim Ark leans against citizenship for the children of illegal aliens. In that case, the Court noted that the Citizenship Clause would not grant citizenship to the children of foreign soldiers who were on American soil because they were engaged in hostilities against this country, or because they were kept here as prisoners. “The Court recognized that even a rule based on soil and physical presence could not rationally be applied to grant birthright citizenship to persons whose presence in the country was not only without the government’s consent but in violation of its law,” he explained. The Court’s reasoning would apply with equal force to foreigners who explicitly violate federal law in coming into this country.

Professor Peter Schuck, from Yale Law School and Professor Roger Smith from the University of Pennsylvania reach the same conclusion in their scholarly treatise Citizenship without Consent, declaring that “the framers of the Citizenship Clause had no intention of establishing a universal rule of birthright citizenship.”

Indeed, Eastman points out that a proposed change to the Citizenship Clause offered by Senator James Doolittle (R-WI) to specify that Indian Americans living on reservations should be excluded from citizenship was rejected because they were already not completely subject to the political jurisdiction of the United States, and therefore, were already not entitled to birthright citizenship and thus need not be specifically excluded.

Eastman also compared the language written in 1866 for the Fourteenth Amendment with the definition of citizenship written into the Civil Rights Act of 1866, which, as Breitbart News noted in our first report in this series, promised citizenship only to persons who “are not subject to any foreign power.” Eastman concludes:

As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents, remained a citizen or subject of the parents’ home country was not entitled to claim the birthright citizenship provided by the 1866 Act.

In fact, Eastman adds that because Indian tribes were physically situated within the borders of the United States and the tribes were dependent upon the U.S. government for various matters, a child born into one of those tribes “had a stronger claim to citizenship under the Fourteenth Amendment merely by virtue of their birth within the territorial jurisdiction of the United States than did children of foreign nationals.”

The text and history of the Citizenship Clause point in the same direction, that the Immigration and Nationality Act’s grant of citizenship to almost all foreigners’ children born on American soil is a policy choice, rather than a constitutional command, and therefore, one that Congress can change at any time.

http://www.breitbart.com/big-governm...t-citizenship/