Liberal and Establishment Arguments for Birthright Citizenship Fail

Mother and baby AP Photo Tony Dejak
AP Photo/Tony Dejak

Most arguments for birthright citizenship pushed by the political left and many establishment Republicans are baseless. For those who do try to make a legal argument, the strongest one is based upon two Supreme Court precedents, which were wrongly decided and should be overruled. But even those cases don’t save the myth that the Fourteenth Amendment guarantees citizenship to the children of illegal aliens.

Breitbart News recently explained that while several parts of Donald Trump’s immigration plan are likely unconstitutional, ending birthright citizenship for the children of illegal aliens is perfectly legal, so long as the law would only apply to future children and not to those already born. Trump, Scott Walker, Bobby Jindal, and other Republican candidates calling for ending birthright citizenship are on solid legal ground.

As explained in our previous report, these plans do not require “repealing the Fourteenth Amendment,” contrary to what media commentators breathlessly exclaim. (It should also be noted that many of them are not even lawyers, and most of the few who are lawyers have no expertise in constitutional law). Instead, those plans would only require amending the Immigration and Nationality Act (INA), a federal law which Congress can change at any time.

That report also explained that there have always been classes of children born on American soil that never receive citizenship. It all comes down to the Fourteenth Amendment’s words that children born here are citizens as long as they are “subject to the jurisdiction” of the United States. The question becomes how broad that exception is.

The media is trying to defend what they’ve been saying, however, by looking at two Supreme Court cases. The first is the 1898 case United States v. Wong Kim Ark, where the Court held that for a Chinese-born couple who had legally immigrated permanently to the United States, their American-born son was made a citizen at birth by the Fourteenth Amendment. The second is the 1982 case Plyler v. Doe, where the notoriously liberal Justice William Brennan— writing for the Supreme Court in a 5-4 decision—slipped in an obscure footnote on one page that legal immigrants cannot be treated differently from illegal aliens.

In Wong Kim Ark, the Court acknowledged that Senator Lyman Trumball—one of Congress’s leaders for passing the Fourteenth Amendment—acknowledged that the Fourteenth Amendment’s Citizenship Clause would apply to children born only to parents who were “not subject to any foreign power”—meaning not citizens of a foreign country. Yet the Court refused to abide by that meaning of Trumball’s words—and similar speeches by other members of Congress—and instead held that because Wong’s parents were here legally and permanently, their son should be deemed a citizen.

In Wong, the Court thus refused to adhere to the original meaning of the Fourteenth Amendment. For any conservative, the only legitimate way to interpret the Constitution is according to the meaning that the American people believed those words to have when they were written. This method of following the Constitution according to its text, history, and structure is called originalism.

Two justices dissented: Chief Justice Melville Fuller, joined by Justice John Harlan. This is part of the legal legacy of Harlan, the courageous dissenting justice in Plessy v. Ferguson. Decided in 1896 two years before Wong Kim Ark, the Court held in Plessy that the Fourteenth Amendment permits segregated facilities for public services such as public schools or transportation so long as they are of equal quality, ignoring the original meaning of the Fourteenth Amendment’s Equal Protection Clause, and giving rise to the infamous phrase “separate but equal.”

Harlan was the lone dissenting justice from that terrible judicial-activist decision, writing:

… in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect to civil rights, all citizens are equal before the law.

The Court’s trend of straying from the Constitution’s fixed meaning continued in the Chinese citizenship case. Wong Kim Ark stands on a shaky legal foundation, one that could be overruled by the Supreme Court at any time. But even then, it only applies to the children of legal immigrants, so even if the Court keeps Wong Kim Ark on the books, it does not confer citizenship upon the children of illegal aliens.

Liberals could combine Wong Kim Ark with Brennan’s footnote in Plyler from 1982 to argue that if it’s not fair to deny citizenship to the children of legal immigrants, then Plyler doesn’t allow such a denial to the children of illegal immigrants, either. Again, Plyler was 5-4; not only did every conservative justice reject it, but so did every moderate. The current Supreme Court may not be conservative, but it’s not liberal, either. If conservatives change federal statute, take it to court, and persuade the current moderate justices—John Roberts and Anthony Kennedy—to join the three conservatives in upholding the original meaning of the Fourteenth Amendment, then birthright citizenship for illegal aliens would end.

Most arguments for birthright citizenship are not so complex; most are just based upon ignoring the Citizenship Clause’s words “and subject to the jurisdiction thereof.” But for those who insist on claiming that the Supreme Law of the Land is on their side, those are the contortions they must resort to.

That also means whether such immigration reforms would work in the end depends in part on the membership of the Supreme Court. If candidates propose immigration reform, but not specific plans as to what sort of justices they would appoint (“very conservative” by itself means nothing), then they don’t really have a plan for birthright citizenship.

Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.


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