The Constitution Is Perfectly Clear About Citizenship

The persistence of birtherism is a depressing feature of our corrupt and hateful national dialogue.

Getty / The Atlantic

It took all of about 39 seconds for the vicious “birther” chatter to reemerge once former Vice President Joe Biden announced that Senator Kamala Harris would be his running mate for the November election. No wonder, since a certain variety of American citizen just can’t seem to wrap his mind around the U.S. Constitution’s provisions guaranteeing equal citizenship to all Americans.

Not long after the passage of the USA PATRIOT Act, I gave a talk on civil liberties in a small hamlet tucked away in the foothills of Oregon’s Cascade Mountains.

Afterward, an audience member helpfully shared a secret: I didn’t know it, he said, but I was immune from any arrest or detention. If law enforcement tried to detain me, he said, “Just tell them you are not subject to the Fourteenth Amendment, and they have to let you go.”

“I don’t encourage you to try that,” I answered. He went away shaking his head at my ignorance of the real Constitution.

The man’s suggestion was a surprise but not a shock. From my work in constitutional history, I have learned that the Fourteenth Amendment is the most important single part not only of the reformed, post-slavery Constitution, but also of crazed theories from the fever swamp of the constitutional far right.

I am pretty sure my new friend was going to roll out a theory I’d read in militia chat rooms and heard in “patriot” meetings: that Section 1 of the Fourteenth Amendment creates two levels of citizenship—“sovereign citizens,” meaning white males, who were already citizens before the amendment was adopted, and “Fourteenth Amendment citizens,” meaning women and members of racial minorities. “Sovereign citizens” are subject only to the “organic Constitution,” which is usually described as the document drawn up in Philadelphia plus the Bill of Rights. Their rights are God-given. “Fourteenth Amendment citizens” occupy a lower rung. Their privileges and immunities come by grace of government and can be revoked. U.S. courts have no jurisdiction over the “sovereign” (different factions disagree about why, but agree that this is so).

Here’s the language that myth misinterprets: “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.”

It’s not really unclear. Born here? Check. Subject to U.S. and state jurisdiction? Check. Citizen? You got it.

Second-class status? No.

But even before the amendment entered the Constitution in 1868, a determined attempt—largely powered by white men infuriated at losing their supremacy—had been made to convince Americans that it must mean something other than equal citizenship for all.

Indeed, the fight against equal citizenship can be traced, chillingly enough, to the assassination of Abraham Lincoln. On April 11, 1865, the southern firebrand John Wilkes Booth stood among a crowd outside the White House while President Lincoln gave a short address on the reconstruction of the former Confederate states. His plan for Louisiana did not include the vote for Black Americans there. “It is also unsatisfactory to some that the elective franchise is not given to the colored man,” Lincoln said. “I would myself prefer that it were now conferred on the very intelligent, and on those who serve our cause as soldiers.”

At this, Booth turned to his co-conspirator Lewis Powell and said, “That means nigger citizenship. That is the last speech he will ever make.” Three days later, on Good Friday, Booth shot Lincoln dead at Ford’s Theatre.

The idea of shared citizenship—of the Fourteenth Amendment’s promise of what one of its proponents, Representative John Bingham, had called “one country, one Constitution, and one people”—is still resisted by those to whom the idea is literally unimaginable. When Hiram Revels, an American-born Black man from Mississippi, was elected to the U.S. Senate in 1870, Democratic opponents delayed his swearing-in for two days with the claim that he had not been a citizen for the required seven years. Their kindred spirits have asked over and over whether one group or another—the formerly enslaved, Chinese Americans, American-born children of undocumented immigrants—could possibly be American citizens. Could they vote? Could they be president? Are you serious? What is the point of citizenship if anyone can have it?

This is the painful background to the entirely predictable attempt by a far-right scholar, John Eastman of Chapman University’s law school, to cast a shadow on the selection of Harris as Biden’s running mate. In a recent essay in Newsweek, Eastman points out that Harris’s parents were both immigrants, living in Oakland, California (which, according to the most recent U.S. Geological Survey National Map, is within the territorial limits of the United States), when Harris was born there in 1964.

Eastman is just asking questions, he says. Here’s the main one: Were Harris’s parents “merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act? If the latter were indeed the case, then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers—Jamaica, in the case of her father, and India, in the case of her mother—and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.”

This is the nub of a persistent, utterly fraudulent myth about the Fourteenth Amendment—that the child of a noncitizen, born in the United States, is not “subject to the jurisdiction of the United States,” as specified by the Fourteenth Amendment’s citizenship clause.

Is there anything to it? Not in the slightest. Children of noncitizens in the U.S. can be sued, arrested, tried, and imprisoned by state or federal government. That’s jurisdiction. The “subject to the jurisdiction” argument is crackpot constitutionalism—“sovereign citizenship” in academic robes—and its persistence is a depressing feature of our corrupt and hateful national dialogue.

First, let’s deal with the idea that Harris in 1964 was, because her parents may not have been citizens, not “subject to the jurisdiction” of the United States or of California. As I have pointed out before, it takes an impressive level of mental torture to hold this idea in one’s mind alongside the practical knowledge needed to get through an ordinary day. The framers of the Fourteenth Amendment made clear in the debates drawing up its language that “subject to the jurisdiction” had a practical lawyers’ meaning—subject to suit and trial in American courts; the only exceptions to this were persons who, by treaty or international law, were immune to American law. The language of the debates makes clear that the “jurisdiction” excepts only Native people and the children of diplomats. The deniers insist that the language really means Native people, diplomats—and anyone whose parents are from another country.

This is, to use a technical term, swill. Not long ago, the former White House aide Michael Anton published an op-ed in The Washington Post that altered the transcript of the debates on “subject to the jurisdiction” to say what conservative commentators claim was said. Some years ago, I debated a Claremont Institute scholar who similarly made claims unsupported by the evidence. Perhaps this keeps happening because the actual record of what was written and said at the time the amendment was adopted just can’t get such scholars to where they want to go.

This brings us to President Donald Trump and his theories on race. Trump seems to have an obsession with the citizenship of people of color, particularly those who stand in his way. We all know of his role in claiming that Barack Obama was “actually” born in Kenya; in 2016, Trump and his supporters claimed that a Republican rival, Senator Ted Cruz, was ineligible to be president because he was born to an American citizen living in Canada. Once Cruz’s prospects began to fade, Trump geared up the same complaint against Senator Marco Rubio, born in Florida to parents who had legally immigrated. And it’s not just his political rivals whom he wants to expatriate by force. People who burn the flag should lose their citizenship, he tweeted a few weeks after the 2016 election. And professional football players (what do many of them have in common with Obama and Harris, I wonder?) who won’t stand during the national anthem should be deported.

Tyrants and would-be tyrants are often eager to take citizenship into their own hands as a powerful tool of terror and control. Stalin’s Russia stripped political dissidents of citizenship at his will. Once in power in Germany, the Nazis quickly stripped Jews of their citizenship as a prelude to the Holocaust. Fascist Italy adopted laws permitting the denationalization of Italians who dissented politically.

And American history preserves the spectacle of Chief Justice Roger B. Taney, who in 1857’s Dred Scott decision proclaimed that persons of African descent were not and could never be citizens of the United States.

Representative Thaddeus Stevens, one of the sponsors of the Fourteenth Amendment, told the House of Representatives that the doctrine of Dred Scott “damned [Taney] to everlasting fame; and, I fear, to everlasting fire.” During my time as a professor at the University of Baltimore, I am happy to say, the city’s monument to this judicial monster was removed. His spirit, though, lives on in the strange imaginings of “sovereign citizens” and the more elegant insinuations of scholars.