Before I was waylaid to discuss the Speaker of the House issue, I had been writing a series of posts on a nonoriginalist interpretation against birthright citizenship. See here (and for two earlier posts here and here. My point has been to show that there is a strong nonoriginalist argument against birthright citizenship (even though the original meaning cuts the other away). Since nonoriginalism is accepted by many as the proper way to interpret the Constitution, these nonoriginalists cannot reject this interpretation as illegitimate.
In a prior post, I set forth an interpretation of “subject to the jurisdiction” of the United States that is different than what I regard as the original meaning. Under this nonoriginalist view, the phrase means subject to the exclusive jurisdiction of the United States. Since the children of parents who are citizens of another country, including illegal immigrants, are subject to the jurisdiction of those countries, those parents and children would not be subject to the jurisdiction of the United States. Interestingly, this interpretation is very similar to those who claim that the term only covers those who do not have allegiance to another nation.
Here I want to offer three nonoriginalists arguments for this interpretation – the type of arguments that are typically made by nonoriginalists. First, there are strong nonoriginalist reasons for not following the original meaning as to birthright citizenship for the children of illegal immigrants. At the time of the 14th Amendment, there was not an illegal immigrant issue, since there were essentially no federal laws restricting immigration. Thus, the Framers of the Amendment were unlikely to have had that issue in mind. Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter. Thus, the original meaning is not weighty.
In my prior two posts, I argued 1) for a large amount of legal immigration and 2) that the original meaning of the Fourteenth Amendment confers birthright citizenship, even on the children of illegal immigrants.
Here, though, I want to present a nonoriginalist interpretation of the Fourteenth Amendment’s Citizenship Clause – one that would deny birthright citizenship to the children of illegal aliens. My principal aim in this exercise is to make a point about nonoriginalism: while many advocates of nonoriginalism seem to believe that nonoriginalism only leads to more rights of the type that they like, this is not true. While most advocates of nonoriginalism probably favor birthright citizenship, nonoriginalists should see that the original meaning here supports a result they like, whereas nonoriginalism allows a strong argument for a result they dislike. (It is also worth noting to originalists that nonoriginalism may sometimes support results they like.)
While the language “subject to the jurisdiction thereof” might have the original meaning as I mentioned in my previous post, it could also be understood as meaning “subject to the exclusive jurisdiction of the United States.” Under international law at the time of the Fourteenth Amendment, states had jurisdiction over their citizens anywhere in the world, but of noncitizens mainly in their own territories. Thus, the children of solely American citizens born in the United States are exclusively subject to the jurisdiction of the United States. No other country has jurisdiction over them. By contrast, the children of foreign citizens, who were typically citizens of their parents’ country of birth, would not be subject to the exclusive jurisdiction of the United States, because they would be subject to the jurisdiction of their parents’ home country. This interpretation, then, has the consequence that the children of foreign citizens, both legal and illegal, would not be citizens at birth under the Fourteenth Amendment.
Having stated my political view that the United States should allow a large amount of legal immigration, I now turn to birthright citizenship: the idea that any person born in the United States should automatically be a United States citizen. While I will develop this point later, it should be noted at the beginning that these two issues do not necessarily coincide. One can favor immigration, even illegal immigration, and still be against birthright citizenship. As I will explain later, I hold a version of this position. Similarly, one could favor birthright citizenship and be against much immigration. The first sentence of…
With immigration – both legal and illegal – being the subject of debate these days, I thought I would blog a few posts on the issue generally and on the Fourteenth Amendment’s Citizenship Clause in particular. To sum up my positions, I strongly favor legal immigration, I believe the original meaning of the Constitution requires birthright citizenship for the children of illegal aliens born in the United States, but I believe that a reasonably strong nonoriginalist argument can be made against such birthright citizenship for illegal immigrant children.
To begin, I favor legal immigration. The United States is a country of immigrants and it has been greatly enriched by such immigrants. The nation should allow large number of immigrants to enter its borders. Sadly, the welfare state probably makes it necessary to allow fewer immigrants in, but still large numbers should be admitted.
Not only do I favor immigrants based on public policy reasons, I also sympathize with them. I think of myself as coming from a family of immigrants, with three quarters of my grandparents being immigrants. And my wife, and her family, are also immigrants.
Candidate Donald Trump’s recent proclamation that he is opposed to so-called “birthright citizenship” for the offspring of illegal aliens born in the United States has, like many of his campaign statements, set off hysterical paroxysms of outrage and protest. I do not support Donald Trump for President, but much of his appeal lies in the fact that he is willing to address taboo subjects in a way that the public—tired of candidates and elected officials cowed by rigid protocols of political correctness—finds refreshing. The topic of “birthright citizenship” is a perfect example.
Many Americans believe that the Fourteenth Amendment created “birthright citizenship.” By this logic, any person born on U.S. soil is an American citizen. That is an interpretation, and not the most natural one, of the phrase, “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.”
The key question is what does the phrase, “subject to the jurisdiction thereof” mean? The prevailing view, at least in our political class, and among activists, is that it means subject to any jurisdiction. Hence most Americans, even lawyers who ought to know better, think that the children of people who came to America on tourist visas, or no visa at all, are American citizens.