President Donald Trump is thinking about signing an Executive Order that would end the birthright citizenship that many say is encoded in the 14th Amendment of our Constitution. Whether Trump has the authority for such an EO is an open debate, but the more important debate is another one such a move has triggered: whether we should have birthright citizenship, in particular for the children of illegal aliens.
Nor is this question as cut and dried as many would like it to be. Josh Blackman, South Texas College of Law Houston, has argued
More than 150 years after the amendment’s ratification, this “gloss” on the Constitution cannot be trumped by disputed definitions of “jurisdiction…,”
This, though, is a very Brandeis-ian view of justice—that it’s better that the law be settled than that it be settled right. Of course, this is…suboptimal…since all it does is perpetuate the injustice and spread it far and wide. Blackman further argued that
…with outlier statements (sometimes misconstrued) during the ratification debates.
There are a couple of things about this bit. One is the arrogance of one man deciding what (inconvenient) arguments are irrelevant because they’re “outliers.” The other, larger thing is the general irrelevance of the ratification debates themselves, including putative outliers. The text of what was ratified already includes the thrust of those debates—for, against, and outlier—and so all that matters here is the text of the Constitution, and not those now OBE pre-ratification debates.
Even the Supreme Court’s primary ruling on one birthright citizenship question isn’t dispositive here. As Matthew Spalding, Hillsdale College Associate Vice President and Educational Programs Dean, pointed out, the Supreme Court in its 1898, but now-often cited, US v Wong Kim Ark ruling conferred automatic citizenship to babies born to legally resident aliens, not to those born to illegal aliens.
[The Court] held only that the children of legal permanent residents were automatically citizens. The high court has never held that the clause confers automatic citizenship on the children of temporary visitors, much less of aliens in the country illegally.
In the end, the nature of birthright citizenship, the legitimacy of citizenship based on the location of a birth, hinges on the nature of jurisdiction in the 14th Amendment’s phrase subject to the jurisdiction thereof.
Americans’ ability to speak in public hinges on the 1st Amendment’s Congress shall make no law…abridging the freedom of speech phrasing and on the nature of abridging. Americans’ ability to go armed in public hinges on the 2nd Amendment’s right of the people to keep and bear Arms shall not be infringed phrasing, the nature of bearing, and the relationship of this clause with a capable militia.
Yet, we carefully regulate both speech and keeping and bearing arms. So it is that we can—and must—regulate the application of jurisdiction to the geographic and political surroundings of being born.
One additional thought on the nature of jurisdiction, beyond its regulability. Jurisdiction is a two-way street. Our polity can impose its jurisdiction on those physically within our borders. But those who enter our nation illegally are withholding themselves from our jurisdiction–by breaking our entry laws, illegal aliens actively refuse to submit to our polity’s jurisdiction. They do not, therefore, satisfy the 14th Amendment’s subject to the jurisdiction thereof requirement. And so the children of illegal aliens, born here, cannot satisfy the requirement on two grounds: from their illegal presence and by the fact that they cannot submit themselves; they are bound by their parents’ decision.
In the end, whatever the phrasing of Trump’s Executive Order turns out to be, whether it survives the inevitable legal challenges, whatever occurs in Congress, the proposal of an EO intended to address directly and explicitly birthright citizenship has triggered the necessary debate about that and about its applicability to children born of illegal aliens.