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Yoo, Rivkin: 14th Amendment Does Grant Birthright Citizenship

David Rivkin, who served as an attorney in the administration of Presidents Reagan and George H.W. Bush and John Yoo, a Law Professor at UC Berkeley who clerked for Supreme Court Justice Clarence Thomas and served deputy assistant attorney general in the Office of Legal Counsel at the US Department of Justice during President George W. Bush’s presidency argued the 14th Amendment does grant birthright citizenship on Thursday’s “O’Reilly Factor” on the Fox News Channel.

Yoo said that those who argue the 14th Amendment does not grant birthright citizenship are “flat wrong,” and “the text of the 14th Amendment is clear. It says, ‘All persons born or naturalized in the United States, [and] subject to the jurisdiction thereof, are citizens’. This is not just the 14th Amendment. This has been the rule in American history since the founding of the republic. The 14th Amendment was really just reversing one of the great stains of constitutional law, which was Dred Scott, where Roger Taney, in one of the cases that precipitated the Civil War, said that Congress could pick and choose who to make citizens or not, even though they were born here, and notoriously, the Supreme Court said free blacks could not be citizens.

Yoo added that the phrase “subject to the jurisdiction thereof” “also was just codifying common law practice from the beginning of the country, which meant to exclude the children of diplomats, the children of enemy soldiers on our territory, and then the biggest category then would have been Indian tribes, because Indian tribes were on our territory. But they weren’t subject to the jurisdiction of the United States.

Rivkin agreed, adding “let me point out that this is one of the provisions of the Constitution, who’s a original public meaning, which matters for those of us who are conservatives, is clear. Let me just say, during their debate over the measure that became the 14th Amendment, the House came in with a language that did not have this language. In the Senate, it was introduced by Senator Jacob Howard. Both proponents and opponents of this language understood what it meant. It was interesting, because the political hot potato at the time was what to do with the Chinese laborers who were building railroads. So, the opponents of this language were pointing out that if it passed, children born to the Chinese nationals in this country would become US citizens.”

The segment then turned to politics. O’Reilly asked Yoo if Democrats will attack Republicans by using GOP candidate Donald Trump’s calls for deportation of the illegal immigrants in the US and ending birthright citizenship. Yoo responded, “If I were a Democrat, that’s what I would do. Because it’s a waste of time, the Constitution is not going to be amended to do this. And all it does is they could say it’s returning us back to the terrible times of Dred Scott and the pre-Civil War period. We — that’s why we — the 14th amendment is one of the great achievements of the republican party, to make clear that everybody born in this country is a free citizen.” And “I don’t think Trump is a a Republican. I think actually, he’s ruining the Republican Party, and he’s opening a huge wedge issue for Democrats to exploit.”

Rivkin added that he thinks there could be a danger GOP rhetoric on immigration could go too far, but, “I also see the opportunity, Bill, to the extent we have a number of presidential candidates, including, most prominently, Jeb Bush, who are taking a robust position against this. This is a wonderful opportunity to differentiate themselves from the rest of the pack. So, it depends on how this plays.”

Follow Ian Hanchett on Twitter @IanHanchett

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