The Problem with Challenging Birthright Citizenship

If the Fourteenth Amendment means that the children of undocumented immigrants are not citizens, as Donald Trump suggests, then they are also not subject to American laws.

LM Otero / AP

Imagine the moon rising majestically over the Tonto National Forest, highlighting the stark desert scenery along the Superstition Freeway just west of Morristown, Arizona. The sheriff of Maricopa County sips coffee from his thermos and checks that his radar gun is on the ready. A lot of lawmen wouldn’t have bothered to send officers out at night on such a lonely stretch of road, much less taken the night shift themselves. But America’s Toughest Sheriff sets a good example for his deputies. As long as he’s the sheriff, at least, the rule of law—and the original intent of the Constitution—will be enforced by the working end of a nightstick.

Suddenly a car rockets by, going 100 miles an hour by the gun. Siren ululating, the sheriff heads west after the speeder. The blue Corolla smoothly pulls over to the shoulder. The sheriff sees the driver’s side window roll down. Cautiously he approaches.

“License and registration,” he says.

But the driver simply grins at him. “I’m sorry, Sheriff,” he replies. “I don’t have to do that.”

“You’re not from around here, are you?” the sheriff says between clenched teeth. “You better not make me ask you again.”

“I was born here—just a few miles from Organ Pipe, actually,” the driver says. “But, you see, my parents—well, they’re undocumented immigrants. In fact, they are right here in the back seat and they can show you their lack of papers if you want. And since they’re undocumented, and I’m their child, well, I’m not—“

The lawman feels sick. “Then you’re not subject to my jurisdiction,” he says.

“That’s right, sheriff! I don’t have to follow state law—not subject to the state’s prescriptive jurisdiction. I don’t have to obey your lawful orders—not subject to the sheriff’s enforcement jurisdiction. I don’t have to appear in court—not subject to the state courts’ adjudicative jurisdiction. I can drive 125 miles per hour backwards down the white line flipping you the bird and there’s not a damn thing you or anyone else can do about it—except complain to the government of the country my parents came from 45 years ago. So if you got a problem with me, go call the embassy.”

Then the stranger winks. “And sheriff?” he said. “You be sure to have a nice night.”

The sheriff walks back to his Charger. There’s something wrong with this state of affairs, he thinks. Damn the Fourteenth Amendment and its true original intent.

That little counterfactual is inspired by the latest toad leaping from the mouth of Donald Trump. During a stop in Iowa, he gave voice to the stubborn myth that the Fourteenth Amendment’s citizenship clause does not provide birthright citizenship to the children of undocumented aliens. During his impromptu debate with journalist Jorge Ramos, Trump said, “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. Excuse me, some of the greatest legal scholars—and I know some of these television scholars agree with you. But some of the great legal scholars agree that that’s not true … There are great legal scholars, the top, that say that’s absolutely wrong.”

In fact, although there are a few academics on his side, most scholars disagree with Trump. Here’s the full text of the clause, which is the first sentence of section 1 of the amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” American citizenship, it says, is acquired by birth in the United States; and at least since the Supreme Court case of United States v. Wong Kim Ark, the federal courts have enforced that rule more or less as written. If you are born in the U.S., you are a citizen regardless of your parents’ citizenship or status.

The words mean what they say: A person subject to arrest and prosecution in the United States is “subject to the jurisdiction” of the country. Since the 1980s, a small part of the legal world, however, has begun arguing for a new and improved “original intent” of the clause. These scholars claim that undocumented aliens and their children are not “subject to the jurisdiction” of the United States.

Edward J. Erler of the Claremont Institute, for example, recently wrote in National Review Online, “A correct understanding of the intent of the framers of the 14th Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the ‘jurisdiction of the United States’ and therefore eligible for citizenship.”

Not really. This will be on the quiz: Congress can’t by statute repeal the Constitution. The language of the clause is clear; so is the “original understanding”; so is the caselaw.

This isn’t particularly a left-right issue. No less formidable a conservative than John Yoo rebuked Erler in NRO a few days later: “Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory,” Yoo explained. “Otherwise they could commit crimes of all sorts without fear of punishment.” (And that’s the basis of the counterfactual with which we began.)

What, then, does the exception mean? The children of diplomats covered by diplomatic immunity—ambassadors and their staffs—are, under the law, not born “in” the United States even if they are delivered at Georgetown Hospital. That’s a long-standing legal fiction of which the Framers were well aware. Those children are not birthright citizens.

Treaty obligations are also the key to the other exception to the “jurisdiction” of the United States. In mid-19th-century America, many of the Native American nations of the West and Midwest dealt with the United States by treaty and diplomacy. Members of those tribes who entered U.S. territory (like the alien in my fantasy) could not be arrested if they committed crimes or sued in a U.S. court if they damaged property. The U.S. government instead would seek reimbursement for the damage from their tribal government.

Senator Lyman Trumbull, one of the Amendment’s sponsors, explained the term thus: “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 ... Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom [another speaker had referred] we do it by means of a treaty?”

After the crime of slavery, the Framers of the Fourteenth Amendment wanted to create a new nation in which there would no sub-humans, no inferior caste that could be sold onto plantations or herded into camps. The citizenship clause is a key part of the structure they built. There are some scholars who disagree, but mostly they are not “the top.” Most of the anti-birthright citizenship “evidence” is phony.

Jorge Ramos confronted Trump largely to ask one question: “How are you going to deport 11 million [people]?” Trump’s answer: “In a very humane fashion.” That answer ought to chill our collective blood.  When the U.S. rounded up roughly one one-hundredth that number of Japanese and Japanese Americans, the result was a lasting stain on our national honor. And yet we listen calmly as a candidate promises “humane” deportation on a scale never before seen on earth, the forcible detention and removal of 11 million people, a human community larger than all but seven American states. He proposes a policy that will by design intern innocent children who are American citizens, and remove them to countries where they have never before set foot.  On this scale, we are not talking about immigration policy; we are talking (I don’t have time for political correctness here) about a crime against humanity.