President Trump’s comments are not even set to air until this weekend, but already they have created a firestorm of commentary, most of it ill…
President Trump’s comments are not even set to air until this weekend, but already they have created a firestorm of commentary, most of it ill-informed.
It is not “within the president’s power to change birthright citizenship,” claimed Lynden Melmed, former chief counsel to the US Citizenship and Immigration Services, echoing the views of many in the legal academy. Birthright citizenship is mandated by the 14th Amendment to the Constitution, and therefore can only be “changed” by constitutional amendment, not by mere executive order or act of Congress, or so the argument goes.
That view has given rise to the cottage industry known as “birth tourism.” Worse, under this view, citizenship is automatic even if the parents overstay their visas and become illegally present in the United States. Worse still, such citizenship is automatic for children born of parents who were never lawfully present in the United States in the first place.
In a nation such as the United States, which is rooted in the idea that governments are formed based on the consent of the governed, the notion that foreign nationals can unilaterally confer citizenship on their children as the result of illegal entry to the United States (and therefore entirely without our consent) is a bit bizarre.
It rewards lawlessness, undermining the rule of law. It deprives Congress of its constitutional authority to determine naturalization power.
And it essentially destroys the notion of sovereignty itself, since a “people” are not able to define what constitutes them as a “people” entitled, as the Declaration of Independence asserts, to “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”
That the 14th Amendment settled the question without ever explicitly addressing it is even more bizarre.
The actual language of the 14th Amendment actually contains two requirements for automatic citizenship, not just one. “All persons born or naturalized in the United States” — that’s the birth-on-US- soil part — “and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It is that second requirement, “subject to the jurisdiction,” that is the source of much confusion today, because to our modern ear, that just means subject to our laws.
That is one meaning, of course, but not the only one, and not the one that the drafters of the 14th Amendment had in mind. For them, being merely subject to our laws meant that one was subject to our “partial” or “territorial” jurisdiction. It was a jurisdiction applicable to “temporary sojourners” — what we today call temporary visitors. It was not the kind of jurisdiction that was codified in the 14th Amendment. For that, a more complete, allegiance-owing jurisdiction was required.
We don’t need to speculate about this, as the authors of the 14th Amendment were asked directly what they meant (albeit not in the context of illegal immigration, since there were no restrictions on immigration at the time). When asked whether Native Americans would automatically be citizens under the clause, Sen. Lyman Trumbull, a key figure in the drafting and adoption of the 14th Amendment, responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”
And Sen. Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now.” And the “now” that he was referencing was the 1866 Civil Rights Act, which provided that “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
So President Trump is not proposing to “amend” the Constitution by executive order. He is proposing to faithfully enforce the Constitution as written, not how it has erroneously come to be interpreted in the last half century. It’s long overdue.
John Eastman is a senior fellow of the Claremont Institute and constitutional-law professor at Chapman University
