Phony 'Originalism' and the Assault on Birthright Citizenship

By Garrett Epps

The recent Republican proposal to amend the Fourteenth Amendment, I wrote a few days ago, at least "represents a concession by the right that they can't do away with birthright citizenship by statute." That's probably too sunny an assessment, as the two efforts are running on parallel tracks. While Sen. Lindsey Graham and the Republican leadership are cynically proposing a constitutional amendment, there's a powerful movement urging Congress and the courts simply to ignore the Citizenship Clause and pass laws purporting to strip citizenship from American children because of their parents' immigration status.

When (as even its supposed proponents know will happen) the constitutional amendment proposal is dropped after the election, there will remain the demand that the courts simply re-interpret the Clause.

As a matter of constitutional interpretation, it ought to be a tough sell. The language of the Clause is pretty sweeping: "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." But the nativist right has begun to explain that the "original intent" of the Clause is different from what it say.

"Originalism" in this context means the use of clever arguments and partial quotations to eradicate the actual text of an argument. I mean no disrespect to the many fine scholars who work hard to recover the "original public understanding" of the Constitution's language. Their work is often provocative and valuable, even if rarely conclusive. But the rhetoric of "original intent" is sometimes misused by very unscholarly figures as a tool to silence questions about far-right constitutional theories.

A clear text, like the Citizenship Clause, can slowly be covered over by barnacles of quibble and questionable historical assertion, until legislators and even judges are convinced that it can't mean what it says. This stealth technique of legal change illustrates a saying of that wise old psychologist, Samuel Johnson: "Reason by degrees submits to absurdity, as the eye is in time accommodated to darkness.''

The anti-textual argument begins with the phrase "subject to the jurisdiction." So-called "illegal aliens," the argument goes, are not "subject to the jurisdiction" of the United States, so their children, even if born here, aren't either.

This argument doesn't pass the laugh test. Does anyone doubt that American police have the power to arrest "illegal" aliens for crimes committed on American soil? Does anyone seriously contend that people injured in auto accidents are barred from suing "illegal" alien drivers? And those are the parents. Remember the Clause is about the child, born and present in the United States. Any power the law has over children of American citizens at the moment of their birth on American soil, it also has over American-born children of aliens. Child welfare authorities can take them away from their parents as part of an abuse or neglect investigation. The civil-justice system can attach their property if it is a subject of a dispute. They have no immunity from American law, any more than do their parents.

In order to inject unclarity into the debate, however, opponents of birthright citizenship resort to a favorite technique: partial and distorted quotation from legislative debates. (For those interested in a more detailed look at this question, my unpublished paper on the history of the Clause can be found here.) Here's our old pal Ann Coulter: "The drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. ... The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: 'This 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.'"

"Honest Jake" Howard, bless his heart, was not the "very author" of the Clause. The larger problem, though, is that the quote doesn't say what Coulter claims it says. It says something that is true as a matter of law today: children of accredited foreign diplomatic personnel, even if born on U.S. soil, are not birthright citizens. Why not? Well, because of diplomatic immunity, these children are not "subject to the jurisdiction" of the United States. Like their parents, children of diplomats are not subject to arrest or civil suit, even if they commit crimes or torts on U.S. soil. That was the law in 1866 and it's the law today, and that's what Howard is talking about.

There was one other group excluded by the "subject to the jurisdiction" language: Native Americans--not all Native people, but those who remained on reservations and were "subject to the jurisdiction" of their tribal governments. By law, they could not be sued in federal or state courts, or arrested and held by local authorities. Disputes with these Natives were handled as government-to-government matters.

Again, "illegal aliens" don't fit this model; they can, as noted above, be sued, arrested, jailed, and even executed by U.S. authorities for crimes they commit here; and their children can as well.

The second strand of the argument runs that the authors of the Clause couldn't have meant what they said, because there weren't any "illegal aliens" back then, or even all that many immigrants at all. Coulter again: "Inasmuch as America was not the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it's amazing the drafters even considered the amendment's effect on the children of aliens."

In fact, America in 1866 was much like America today. (Anybody who wants my detailed look at the situation at that time should feel free to consult my book, Democracy Reborn, which tells the story of the Fourteenth Amendment.) Roughly the same proportion of the population--quite high, by historical standards--was foreign-born in 1866 as it is today. Many Coulterish voices in the press and the pulpit foresaw the end of America. Of course, the undesirable groups were different--beery Germans, wild Irish, and sinister Chinese rather than insinuating Latinos--but the perceived menace to the "real" America was just as dire.

Andrew Johnson and his pro-Southern allies warned that the language would make citizens even of Gypsy children--who, one opponent warned, "pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him, but, on the other hand, have no homes, pretend to own no land, live nowhere, settle as trespassers wherever they go."

Yes, the amendment's authors replied: Chinese, Irish, and Gypsies, too. The point was to create a nation in which all children began as equals, where local majorities had no power to deprive them of their basic rights.

Make no mistake: that idea, of a republic of equal rights and rule of law, is the real target of the citizenship-restriction movement. Repeal of birthright citizenship would create a new class of American untouchables. That's all the people of Arizona, or Prince William County, Virginia, or Hazleton, Pennsylvania are asking--a small hole in the legal idea of equality to let them push around one group they really, really dislike. That group and their children, that is; and, for that matter, their children's children, even unto the last generation.

How jolly a majority finds it to be given human beings as servants and toys! Or at least that's true for a while. But the idea of inequality by law has a way of undermining law itself, and democracy, until all that remains is naked force and the rule of the many by the few. The authors of the Citizenship Clause had seen Southern slavery eat away at the very idea of democratic government, until it nearly destroyed the United States. They set the Fourteenth Amendment, and its citizenship language, in the American sky as a reminder that inequality by birth was the doorway to dishonor.

The text of the Citizenship Clause is clear, and no vote of Congress or any state legislature should be allowed to undermine it. The clamor for hereditary inequality comes from people eager to repeat the mistakes of the American past, and by so doing, to betray the American future.


This article available online at:

http://www.theatlantic.com/national/archive/2010/08/phony-originalism-and-the-assault-on-birthright-citizenship/61224/