It seems wrong to many that two people, a mother and father, who are within the borders of the United States of America without lawful authorization, should be able to produce a child who, by virtue of having been born here, is American. After all, if the parents never should have been here in the first place, how can their illegal status be magically cleansed for their offspring, who is a birthright citizen? Because that’s what the Fourteenth Amendment to the Constitution says.
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.
The kicker, some believe, is that being born here isn’t enough, but the person must also be “subject to the jurisdiction thereof.” Sorry, kids, but that’s not only also long decided, but easy-peasy to address. If the child of undocumented immigrants commits a crime, can the police not arrest him, the courts not prosecute him, and prison not incarcerate him? If so, then he is, indeed, subject to the jurisdiction thereof.
Trump’s interpretation of that phrase contradicts the definition that the U.S. Supreme Court embraced in 1898. That case involved a Chinese cook, Wong Kim Ark, who was born and raised in San Francisco but was denied reentry when he returned to the United States after visiting China on the grounds that he was not a U.S. citizen.
Ruling in Wong’s favor, the Supreme Court held that people are “subject to the jurisdiction” of the United States when they are bound to obey its laws. The majority reached that conclusion after considering British common law, colonial legislation, judicial rulings in England and America, and the debate preceding the 1868 ratification of the 14th Amendment.
But why include the phrase if it was so obviously the case? Because there are exceptions that apply. They may not be common exceptions, but they’re exceptions nonetheless.
Based on that history, the Court said, “children of diplomatic representatives” and “children of alien enemies in hostile occupation” are not U.S. citizens. It made an additional exception, which no longer applies, for children born to “members of the Indian tribes owing direct allegiance to their several tribes.”
But the point now is that many have come to despise the way the Fourteenth Amendment functions, despite the originalist and textualist interpretations they otherwise prefer. Maybe it’s because there are too darn many of them birthright babies. Maybe it’s because it draws undocumented immigrants in order to have their babies here and beat the system. Maybe it’s because the new breed of immigrants aren’t like our old favs from Europe.
“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,” the Court noted, “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.” To avoid that implication, the German-Scottish president-elect asserts a constitutional distinction between the children of legal immigrants and “the children of illegal aliens.”
But that wasn’t always the way Americans viewed immigrants, legal or otherwise.
That distinction is ahistorical. “Congress did not generally restrict migration until well after adoption of the Fourteenth Amendment,” James Ho, whom Trump appointed to the U.S. Court of Appeals for the 5th Circuit in 2017 and considered as a potential Supreme Court nominee, noted in a 2006 law review article.
“Nothing in text or history suggests that the drafters [of the 14th Amendment] intended to draw distinctions between different categories of aliens,” Ho wrote. “To the contrary, text and history confirm that the Citizenship Clause reaches all persons who are subject to U.S. jurisdiction and laws, regardless of race or alienage.”
The point isn’t that our view on immigration can’t evolve, given how many other ideas have managed to change in the past decade or two. Maybe it’s true that the waves of unlawful border crossings give rise to a change in our perception of immigrants, although much of our economy and lifestyle relies on their labor and contributions to the public weal. But that doesn’t mean the Constitution can be changed because some are xenophobic by signing an Executive Order.
President-elect Donald Trump plans to overturn that understanding by issuing an executive order on his first day in office.
That order, Trump claims, will “end automatic citizenship for children of illegal aliens.” But the president cannot do that on his own, and any such order is bound to provoke a constitutional argument that Trump cannot win.
Granted, Trump’s grasp at how law and governance works is shockingly negligible for someone who was putatively president for four years. He may believe that he, as king, can waive his sharpie and make the Constitution go away just as he believed he could change the path of a hurricane. And some may wish it to be true, as they support the belief that there are just too many damn foreigners here popping out babies to replace us. But that’s not going to change the Constitution, and like it or not, those babies of illegals are every bit as American as Barack Obama.
If you don’t want the children of “illegal aliens” to be birthright Americans, you’re going to have to change the Constitution. Good luck with that, and be careful about what else gets changed in the process. You probably won’t like the outcome.