The President And Birthright Citizenship.
In what is most likely an election eve post to fire up his immigrant hating base, Trump has declared that he can unilaterally, through no process other than the stroke of his arbitrary and capricious pen, end birthright citizenship by executive order. There is a small stumbling block to his plan, the Constitution of the United States. In particular, a provision of the 14th Amendment which reads as follows:
“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.” — 14th Amendment.
Since passage this provision has been understood to confer citizenship status to almost any person born on American soil. As a concept for our laws it predates this nation. Like much American law it is an extension of English common law, in this case the doctrine of jus soli (right of the soil).
Given the plain language of the 14th Amendment, by what fantasy does Trump believe he can end this doctrine by executive order? It’s a legal theory advanced by very few, frankly rogue, legal scholars who focus on the phrase “subject to the jurisdiction thereof.” Under this almost ignored (until Trump resurrected it) theory, illegal immigrants and their children are not “subject to the jurisdiction” of the United States because they are still citizens of the foreign country they came from.
There are many problems with this. First, being a citizen of one country does not generally preclude also being a citizen of another. My grandson, born in Germany to American parents, is such a dual citizen, and yes he has a passport from both nations. Second, if these people are not “subject to the jurisdiction” of the United States that would mean they could not be prosecuted by the United States for crimes they commit here. I doubt Trump would accept that.
Of course, my own opinions on this are not very relevant. Rather, the precedents of the United States Supreme Court are. The most relevant case is United States v. Wong Kim Ark, 169 U.S. 649 (1898).
Wong Kim Ark was born on American soil as the son of Chinese parents. The Supreme Court found him to be an American citizen. In so doing, the Supreme Court rather plainly said:
“The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States . . . To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States . . . children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency”
Amazingly, the President’s defenders on this find these apparently direct words unpersuasive. They argue Wong Kim Ark’s parents were here legally, and that makes all the difference. The court really doesn’t say that, but let’s move on.
The problem with Trump’s theory is that the Supreme Court in this case quite clearly defined what is meant by the phrase “subject to the jurisdiction” and the court did so in the traditional, very limited manner.
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship.”
Gosh, that seemed pretty on point. The court continues:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words . . . the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State.
So “subject to the jurisdiction of” excludes two classes, and only two classes. Those are children of diplomats and enemy soldiers. That’s it.
The attempt to distinguish Kim Wong Ark on grounds that his parents were legally here still fails because the court so precisely repudiated Trump’s claim that “subject to the jurisdiction” excludes the children of illegal aliens. Since they are not children of diplomats, or occupying enemy soldiers, the phrase does not apply to them, and like Wong Kim Ark, they are citizens.
The claim that the Supreme Court has not addressed this is simply false. Unless you are a naturalized citizen your claim to United States citizenship is by birthright. Every American should fear a President who believes he can alter that definition on his own whim.
