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A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part IV: Nonoriginalist Arguments

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.

Second, there are strong normative arguments against birthright citizenship for illegal aliens (and for many others).  Normative arguments are, of course, one of the mainstays of nonoriginalist interpretation.  One common argument is that conferring citizenship on the children of illegal aliens obviously provides an incentive for more illegal aliens.  A less common argument against conferring citizenship of the children of noncitizen legal residents is that it makes it more difficult to have guest worker programs, since those workers may have children while they are in the United States.

But the strongest normative argument against conferring citizenship on the children of illegal aliens derives from the fact that, in the modern world, American citizenship is a tremendous privilege.  It gives access to high wage markets as well as welfare state benefits.    Given these privileges, the normative question is how we should allocate this privilege of citizenship.

It seems obvious that citizenship should not be granted simply based on the accident of being born in the United States.  Why would one want to allocate citizenship to children merely because they were born here as a result of their parents having come here illegally?  As I noted in an earlier post, there are a variety of ways one might want to allocate citizenship (and immigration) – based on quotas from countries, based on skills contributed to the United States, based on years already lived in the United States – but none of those are based on the simple accident of being born in the US.

Finally, a third type of nonoriginalist argument is to look to the existence of laws throughout the world, especially that of “civilized” countries in Europe.  A strong trend as to these laws suggests that normatively the United States ought to follow it.  Significantly, the only two developed countries in the world that have birthright citizenship are Canada and the United States.  None of the European countries have it and several developed nations have repealed it in the last generation.

Thus, there is a strong nonoriginalist argument for reading the 14th Amendment not to confer birthright citizenship, at least to the children of illegal aliens.  Nonoriginalists might not agree with this argument, but it is hard for them to argue that the argument is illegitimate, since they accept this type of argument.  In the end, one can’t have it both ways.  If one favors the freedom that nonoriginalist interpretive gives to an interpreter, then one must live with the way that those who disagree with you would use that interpretive freedom.

Reader Discussion

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on October 20, 2015 at 10:14:03 am

I don't think that many would argue with the "normative" arguments you list.
However, it is still unclear whether the "originalist" argument interpretation you advance is correct.

(Apologies here to the forgotten author of this quote - I lost the cite)

"Is the textual history of the 14th Amendment any help? The best reading, in my view, is that the Amendment was not designed to make location at birth the primarily determinant of citizenship for Americans. American principles, which the 14th Amendment embodied, follow Vattel rather than common law in that regard. Recall that the purpose of that part of the 14th Amendment was to ensure that all former slaves in America were now citizens. In the Dred Scott case, Chief Justice Taney held that blacks could not be citizens of the United States, even though they were born on American soil. The former slaves, however, were not subjects to any foreign jurisdiction."

I think this gives a somewhat clearer understanding of the intent and *decision* of the drafters of the 14th. Recall, if you will that the 14th was one of three post Civil War amendments, each of which had both an express and implied purpose of protecting the "freedmen."
Is it not a stretch to assume that the *jurisdiction* question would be used to cover persons from all over the globe and those who not only had no allegiance to the USA but also, in some instances, are (or were, hostile to it?

I think *originally* the "jurisdiction" clause was intended for recently freed slaves and not my dear grandfather.

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gabe
on October 20, 2015 at 11:13:41 am

You assert that this interpretation is a “nonoriginalist” interpretation, but that begs the real question that is being debated by many people today. Is it the original meaning or not? I think there are two possible original meanings of the clause that you have not adequately explained why you do not believe they are the original meaning.
First the interpretation that you talk about in this post and claim is the “nonoriginalist” intepreation. But you have not explained why we should ignore the words of the author of the clause, Senator Jacob Howard, and Senator Lyman Trumbull, Chairman of the Judiciary Committee who helped draft the 14th amendment. You discount the clear meaning of the Civil Rights Act of 1866, which I can somewhat understand as the words were not enacted, but do you agree that it at least creates a presumption in favor of the Civil Rights Act meaning of the clause if all other evidence as to the meaning were equal (given the context of the purpose of the creation of the 14th amendment to constitutionalize that Act)?

The second possible originalist interpretation (and the one I claim is current precedent of the Supreme Court), that the clause reversed Dred Scott, and constitutionally re-established the common law citizenship for blacks and whites as expressed in Calvin’s Case. Under this interpretation illegal aliens are equated to the common law exception for the children of invading armies as, under the common law logic of Calvin’s Case, they did not enter the territory with the consent of the government. Do you agree that this is the interpretation of Wong Kim Ark? Do you think Wong Kim Ark was wrongly decided? Given Senator Lyman Trumbull’s claim that by jurisdiction they meant allegiance, not lend at least some weight to this interpretation? (requiring at least temporally allegiance that a legal immigrant has?)

Please explain why you think your interpretation is the original meaning, over these two possible original meanings.

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Devin Watkins
on October 20, 2015 at 16:15:46 pm

Devin:

Absotively!!!!

Rappaport has failed, in this post and in previous ones on this subject, to provide a clear and persuasive rationale / explanation for why *his* particular take on the jurisdiction clause better comports with the *original* meaning and clear express statements of the drafters of the amendment.

I, for one, do not understand how it is possible to dismiss the preceding crisis, i.e., the Civil War and the consequent clear intent by Congress to correct for the evils of ante-bellum practices (slavery, for one) and to reverse the abysmal decision that was at the heart of Dred Scott. It seems as if it stares one in the face - perhaps, because of that many will seek to turn their gaze from its chilling countenance.

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gabe
on October 20, 2015 at 18:32:12 pm

I think it is from this article: http://thefederalist.com/2015/08/25/the-14th-amendment-birthright-for-whom/

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Devin Watkins

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