The Fourteenth Amendment Can’t Be Revoked by Executive Order

A former Trump aide twists the words of the Constitution to advocate depriving American-born children of their citizenship.

Jessica Rinaldi / Reuters

Three weeks after he was elected president, Donald Trump tweeted, “Nobody should be allowed to burn the American flag—if they do, there must be consequences—perhaps loss of citizenship or year in jail!”

Trump thinks about citizenship—and about taking it away—a lot. His entry into Republican politics was an attack on President Barack Obama’s status as a “natural-born citizen.” He is also no fan of the citizenship clause of the Fourteenth Amendment: “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.”

In August 2015, Trump told a press conference that American-born children should not be citizens if their parents are undocumented. “A woman is getting ready to have a baby, she crosses the border for one day, has the baby, all of a sudden for the next 80 years, hopefully longer, but for the next 80 years we have to take care of the people. No, no, no, I don’t think so … There are great legal scholars, the top, that say that’s absolutely wrong.”

Trump misapprehends, to say the least, the state of scholarship. Peter H. Schuck of Yale Law School and Rogers M. Smith, a political scientist at the University of Pennsylvania, have for years been beating the drum for the idea that the Fourteenth Amendment means something radically different from its historical meaning, permitting Congress to strip these children of their citizenship and potentially render them stateless. Though Schuck and Smith are respected, few other serious constitutional scholars have joined their parade.

The majority view is that the words mean exactly what they say—a reading the U.S. Supreme Court agreed with in the 1898 case of United States v. Wong Kim Ark, in which it rejected a government attempt to deny citizenship to the child of Chinese immigrants. In this view, Schuck and Smith misread the historical materials.

But that misreading is a minor matter compared with the latest salvo from the fringe world of Trumpism. Writing in The Washington Post, the former Trump White House aide Michael Anton has now proposed something I have never heard any sane human being suggest before: “An executive order could specify to federal agencies that the children of noncitizens are not citizens.”

Michael Anton is not one of the “great legal scholars, the top” whose authority Trump has claimed. After Trump’s election, he was the spokesperson for the National Security Council. His oeuvre includes a 2006 book, The Suit: A Machiavellian Approach to Men’s Style, warning that “‘business casual’ has proved itself a one-way ticket to a lifetime in the corporate dungeon.” He gained notoriety during the presidential election by comparing Hillary Clinton’s campaign to an al-Qaeda hijacking. Voting for Trump, he argued, was a meritorious act of destruction, the equivalent of forcing the Flight 93 hijackers to crash into the ground.

Not surprisingly, then, Anton’s proposal draws heavily on other work—specifically that of Edward Erler, a political scientist at California State University at San Bernardino.

I have been writing about the citizenship clause of the Fourteenth Amendment, and its meaning for the children of the undocumented, for more than a decade. In a 2006 book, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post–Civil War America, I traced the drafting of the amendment and the process by which the Senate added citizenship language in May 1866. In a subsequent scholarly article, “The Citizenship Clause: A ‘Legislative History,’” I reviewed in exhaustive (you’ve been warned) detail the debates over this precise clause. I have written about the birthright citizenship issue for The Atlantic here, here, and here.

And, for my sins, I once took part in an online debate with Erler, during which we canvassed the precise evidence Anton claims to rely on. In that exchange, I wrote, “I have no personal quarrel with Erler. But I am constrained to note that he has edited a quotation to suggest a meaning contradicted by the unedited text, he has misidentified a key player in the debate and misstated his role in it, he has cited remarks about one measure and stated that they were made about another, and he has directly misstated the meaning of adverse case authority. His novel interpretation of the clause thus rests on flawed evidence.”

I was trying to be kind. Erler’s work is, at best, scholarly malpractice. Anton’s reliance on this work is the constitutional equivalent of flat-earthism.

The crux of Erler’s and Anton’s argument is that the words subject to the jurisdiction in the clause mean that a child’s parents must be legal residents of the United States. Anton writes:

We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else”—that is, to no other country or tribe. Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

These quotes have been edited to change their meaning. Trumbull actually was explaining “not owing allegiance” in the context about which it was written—federal Indian law as it existed in 1866. At that time, the United States recognized the governments of many Indian tribes as quasi-independent national governments, governed by treaty agreements. Native people on those reservations could not be sued in U.S. courts or punished for crimes on U.S. territory—so they were not “subject to the jurisdiction” of the U.S. Here is the actual quote from Trumbull: “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction.”

What about the quote from “Honest Jake” Howard? Well, here’s the full quote: “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 accredited to the Government of the United States, but will include every other class of persons.” Anton quietly supplied the word or to make it appear that two different definitions were being offered—either a diplomat or a foreigner. But in fact, what Howard was saying was simple: American-born children of diplomats are not birthright citizens—because they and their parents are immune from American laws.

That’s an uncontroversial principle of international law.

Anton’s “evidence” is not even a misreading; it is outright dishonesty. It is risible as history, but we should take it seriously as politics.

Tyrants and would-be autocrats throughout history have itched to get their hands on the law of citizenship. When Hitler took power in Germany, he engineered the passage of the Nuremberg Laws, which stripped citizenship from Germans not of “German blood.” Jews and others were subsequently “state subjects,” without the rights of “real” Germans. That inequality by law was a key part of the chain of events leading to the Holocaust. The Soviet Union, in a law promulgated in 1931, gave the power to annul the citizenship of any citizen to the Presidium of the Soviet Central Committee. Over the years, thousands of dissidents—including Stalin’s political rival Leon Trotsky, the poet Joseph Brodsky, the Jewish activists Avital and Natan Sharansky, and the Nobel Prize–winning author Aleksandr Solzhenitsyn—were stripped of citizenship, driven into exile, and (in Trotsky’s case) murdered.

In 2003, the Justice Department floated a proposal that would have allowed the attorney general to revoke the citizenship of any American—naturalized or native born—if the attorney general “inferred from [the citizen’s] conduct” a desire to renounce citizenship. Popular revulsion forced the abandonment of the idea; but rest assured that it is still lurking among the aspirations of the far right.

And we know what Trump thinks of it.

A democratic country belongs to its people, not the other way around. The Framers of the Fourteenth Amendment knew this well. They’d had decades of experience with racist state laws denying citizenship to slaves, free black Americans, and immigrants. The citizenship clause placed American citizenship—national, equal, unitary, irrevocable—at the center of the democratic polity that they hoped to build from the ashes of the house divided. No one has offered convincing evidence that they secretly intended citizenship to be a gift of the state; no one but Anton has dared to suggest that a president could void the citizenship clause by executive order.

The idea, in fact, seems outlandish today; but until recently, so too did the idea of an overnight Muslim ban, or of forcibly seizing, caging, and drugging innocent children. “We are easily shocked by crimes which appear at once in their full magnitude,” Samuel Johnson once wrote, “but the gradual growth of our own wickedness, endeared by interest, and palliated by all the artifices of self-deceit, gives us time to form distinctions in our own favor, and reason by degrees submits to absurdity, as the eye is in time accommodated to darkness.”

The administration is accustoming the public to crimes of great magnitude. What was unimaginable in November 2016 is already happening in 2018, and it will keep happening until Americans stop it.