Trump vs. the Constitution

The misguided attack on birthright citizenship.

Todd Krainin

On March 27, 1866, President Andrew Johnson sent a message to Congress vetoing the landmark civil rights bill it had just passed. Among the provisions "which I cannot approve," Johnson wrote, was the first section, 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."

Not only would this grant of birthright citizenship make citizens out of "the entire race designated as blacks," Johnson protested, it would also make citizens out of "the Chinese of the Pacific States, Indians subject to taxation, [and] the people called Gipsies." He wouldn't sign it.

So the Republican-controlled 39th Congress passed the Civil Rights Act of 1866 over the president's veto. As Sen. Lyman Trumbull (R–Ill.), the bill's primary author, declared from the Senate floor, "the child of an Asiatic is just as much a citizen as the child of a European." Several months later, that same Republican Congress passed the legislation that became the 14th Amendment to the U.S. Constitution, which, among other things, declared, "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." Upon ratification in 1868, the 14th Amendment's Citizenship Clause enshrined the principle of birthright citizenship in the text of the Constitution. At the same time, it overturned the U.S. Supreme Court's notorious 1857 decision in Dred Scott v. Sandford, which held that persons of African descent could never be U.S. citizens. It was a magnificent achievement for the young Republican Party.

Today, birthright citizenship is again under fire, only this time the attacks are coming primarily from the party that first put the guarantee into place. In mid-August, GOP presidential frontrunner Donald Trump vowed in an immigration-policy white paper to "end birthright citizenship," which he claimed was the "biggest magnet for illegal immigration" (see "Anchor Babies Aweigh," page 24, for the dubious veracity of that assertion). Trump then said on Meet the Press that in addition to somehow preventing future children from enjoying 14th Amendment recognition, he would deport current U.S. citizens if their parents were illegal immigrants.

Where the reality TV star led, the other candidates soon followed, with Ben Carson, Ted Cruz, Mike Huckabee, Rand Paul, Rick Santorum, Bobby Jindal, and Scott Walker all coming out in favor of limiting the practice in some way. Jeb Bush, Marco Rubio, Carly Fiorina, Lindsey Graham, and Chris Christie were also critical. Among the top 14 contenders, only John Kasich and Rick Perry were unequivocal in their support for what the 14th Amendment grants, and the latter dropped out of the race in September.

"I don't think they have American citizenship," Trump told Fox News host Bill O'Reilly, in reference to the U.S.-born children of undocumented immigrants. "It's not going to hold up in court, it's going to have to be tested."

But if the courts follow the Constitution, Trump's test will surely fail. That's because the text and history of the 14th Amendment are clear: If a child is born on U.S. soil, and that child's parents don't happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth.

'No Rights Which the White Man Was Bound to Respect'

The story of birthright citizenship and the 14th Amendment begins back in 1833, when an army doctor named John Emerson purchased a slave named Dred Scott in St. Louis, Missouri. Over the following decade, Emerson's job took him and his new slave to various places around the country, including the free state of Illinois and the free territory that would later become the state of Wisconsin. In 1846, back in slave-state Missouri, Scott attempted to buy his freedom from Emerson's widow (the doctor had died in 1843). After she refused to sell, Scott initiated the legal proceedings that would eventually add his name to the annals of American history.

Dred Scott had a powerful legal argument on his side: When a master takes a slave to live on free soil, the master has emancipated that slave. The lower courts agreed but the Missouri Supreme Court sided with the slaveowner, prompting Scott to initiate a new lawsuit in federal court. In 1857 the U.S. Supreme Court stepped in and rendered its judgment on his fate.

"The question is simply this," declared Chief Justice Roger Taney in Scott v. Sandford. "Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, privileges, and immunities, guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States." In other words, was Dred Scott eligible for U.S. citizenship and thus eligible to bring suit in federal court?

Taney thought not. Black Americans, Taney declared, were "beings of an inferior order" who could never attain U.S. citizenship under any circumstances. "They had no rights which the white man was bound to respect."

To say that Dred Scott ignited a firestorm in anti-slavery circles would be putting it mildly. It was a "devilish decision," thundered the abolitionist leader Frederick Douglass, a "judicial incarnation of wolfishness." Radical Republican Thaddeus Stevens, a congressman from Pennsylvania, was equally apoplectic. The Court's infernal judgment, Stevens said, "damned [Taney] to everlasting fame; and, I fear, to everlasting fire." Nine years later, after the last shots of the Civil War rang out, Stevens and his fellow Republicans set out to amend the Constitution and right Taney's wrong.

Section One of the 14th Amendment is perhaps best known today for its guarantee of individual rights against infringement by state and local governments. Drafted primarily by anti-slavery Republican Congressman John Bingham of Ohio, it reads, "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."

Those words bound the states to respect a broad range of fundamental rights, including those explicitly spelled out in the Bill of Rights, such as freedom of speech and the right to keep and bear arms, as well as certain unenumerated rights, such as the right to economic liberty, which Bingham described to the House of Representatives as the "constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil." The legal battles inspired by this constitutional provision have been shaping American law ever since Reconstruction.

Before the 14th Amendment got around to the business of rights, however, it settled the fundamental issue of citizenship once and for all: "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." Those words, which overturned Dred Scott and made citizens of all black Americans, were introduced by Republican Sen. Jacob Howard of Michigan, a member of the Joint Committee on Reconstruction and floor manager of the 14th Amendment. "This amendment I have offered," Howard told the Senate, "is simply declarative 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."

'Subject to the Jurisdiction Thereof'

Which brings us back to the modern day controversy over birthright citizenship. According to critics like Trump, Sen. Howard's language cannot be read to support birthright citizenship for the U.S.-born children of illegal immigrants. "If you speak to some very, very good lawyers—and I know some would disagree, but many of them agree with me," Trump has said, "you're going to find they do not have American citizenship."

It's easy to dismiss Trump as a clownish celebrity, but he does have some influential lawyers on his side of this debate. One of them is Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit. "We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children," Posner wrote in a 2010 blog post. "That abuse provides an argument for abolishing birthright citizenship." Yet Posner also conceded that "a constitutional amendment may be required to change the rule."

Also notable: conservative legal icon Ed Meese, who famously served as attorney general under President Ronald Reagan. Meese's views on birthright citizenship were spelled out most forcefully in a 2004 friend-of-the-court brief submitted to the Supreme Court in the case of Hamdi v. Rumsfeld. At issue was whether Yaser Esam Hamdi, an American-born militant captured fighting alongside the Taliban in Afghanistan, could be held indefinitely as an "enemy combatant," or whether he must instead be afforded the same constitutional protections as any other natural-born American citizen, including habeas corpus.

In Meese's view, Hamdi was never a U.S. citizen in the first place because his Saudi Arabian parents were only residing in the U.S. on a temporary work visa when he was born. Shortly after the child's birth, the family returned to Saudi Arabia, where Hamdi grew up. "Mere birth to foreign nationals who happen to be visiting the United States at the time, as was the case of Hamdi," Meese declared, "is not sufficient for constitutionally-compelled citizenship."

To support this claim, Meese pointed to the text of the 14th Amendment. "The 'subject to the jurisdiction' provision must," he told the Court, "require something in addition to mere birth on U.S. soil," or else the provision would be redundant. For Meese, that "something" could be just one thing: Only the children of native-born or naturalized citizen parents can automatically qualify for U.S. citizenship. In other words, citizenship accrues by blood, not by place of birth. Notably, not a single member of the Hamdi Court endorsed Meese's position.

Meese is right that the 14th Amendment does "require something in addition to mere birth." But Meese is wrong about what that something is. As Sen. Howard explained to the Senate back in 1866, the Citizenship Clause "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."

Notice that Howard specified two types of aliens whose U.S.-born children would not qualify for birthright citizenship, "ambassadors" and "foreign ministers." What makes ambassadors and foreign ministers different from other aliens residing on U.S. soil? Simple: Ambassadors and foreign ministers have diplomatic immunity and are therefore not "subject to the jurisdiction" of the United States. Instead they remain subject to the jurisdiction of their home governments.

By contrast, "every other class" of aliens, including permanent resident aliens, temporary resident aliens, and illegal aliens, is subject to U.S. jurisdiction, which is another way of saying that those aliens must obey U.S. law or else face punishment in the U.S. legal system. Thus, according to Sen. Howard, the vast majority of U.S.-born children qualify for automatic birthright citizenship. The only exceptions are the U.S.-born children of diplomats, foreign ministers, and, we might add, invading foreign troops, who are subject to the laws of war, not to the laws of the particular nations that they're fighting.

Howard listed one final exception. The children of Indians, he explained, were not subject to U.S. jurisdiction because Indian tribes, although they resided on U.S. soil, "always have been in our legislation and jurisprudence, as being quasi foreign nationals." In other words, because Indian tribes were treated as independent sovereigns by the U.S. government, the U.S.-born children of tribal members were not covered by the Citizenship Clause. That status changed in the early 20th century when federal law stopped treating Indian tribes as the equivalent of sovereign foreign countries.

'They Shall Be Citizens'

This understanding of the Citizenship Clause is amply supported by the debates surrounding the passage and ratification of the 14th Amendment. For example, the first senator to rise in opposition to Howard's citizenship proposal was Edgar Cowan of Pennsylvania, a conservative Republican with ties to President Andrew Johnson. "Is the child of a Gypsy born in Pennsylvania a citizen?" Cowan fretted. "Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?"

Cowan's concerns were promptly addressed by Republican Sen. John Conness of California. "We are entirely ready to accept the provision proposed in this constitutional amendment," Conness responded, "that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law." Even the children of unpopular immigrants, Conness made clear, including the Chinese and the Gypsies, "shall be citizens."

In short, both the supporters and the opponents of the Citizenship Clause understood it to secure birthright citizenship to all but an extremely narrow group of U.S.-born children. The two sides only disagreed about whether this broad grant of birthright citizenship was a good idea to begin with. The original meaning of the Citizenship Clause went unchallenged.

Three decades later, the U.S. Supreme Court gave its stamp of approval to this original understanding in United States v. Wong Kim Ark (1898), in which the Court affirmed the U.S. citizenship of a man born to Chinese immigrant parents in San Francisco who temporarily left the U.S. in order to visit China and was nearly denied re-entry due to the xenophobic Chinese Exclusion Act.

Much like today's undocumented immigrants, Wong Kim Ark's parents were outside the realm of U.S. citizenship. In fact, as persons of Chinese heritage, they were permanently barred from it by the racist terms of the Naturalization Act of 1790, which restricted U.S. citizenship to whites only. Yet despite their status as unwelcome non-citizens, the Supreme Court readily affirmed the birthright citizenship of their U.S.-born son.

Surprisingly, some modern foes of birthright citizenship have tried to cite this case in their favor. Sen. Rand Paul, for example, recently claimed that birthright citizenship "hasn't really been completely adjudicated" because Wong Kim Ark is not "a direct Supreme Court case on people who were here illegally, whether or not their kids are citizens."

But Paul has misunderstood the Court's ruling. As James C. Ho, a respected conservative legal scholar and former clerk to Justice Clarence Thomas, has pointed out, Wong Kim Ark's "sweeping language reaches all aliens regardless of immigration status" (as does the language of the 14th Amendment). Even Ed Meese has conceded that Wong Kim Ark cuts against him. In his Hamdi brief, Meese urged the Court to overturn this "erroneous" precedent.

In any case, the judgment in Wong Kim Ark speaks for itself. "The Fourteenth Amendment," the Court held, "affirms the ancient and fundamental rule of citizenship by birth within the territory, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes."

That original understanding has held sway in American law ever since, and rightfully so.

Most Republicans claim to revere the Constitution. Yet when it comes to the issue of birthright citizenship, far too many Republicans, from Ed Meese on down to Donald Trump, seem willing to ignore the text and history of the 14th Amendment. Not exactly a reassuring indication of the GOP's fidelity to originalist constitutional principles.