Citizenship and the “Living, Breathing Constitution”

I agree with some objections to birthright citizenship. It is certainly an abuse of the purpose of the Fourteenth Amendment’s provision for a foreign mother to fly to the U.S. merely to give birth so her child has automatic U.S. citizenship, then return to her home nation. (That U.S. citizenship continues to be a coveted status across the globe, however, should be a continuing source of pride for Americans.) Yet the question isn’t whether original purposes are being abused, the question is whether a reasonable reading of the text of the Fourteenth Amendment provides for birthright citizenship. If it does, then, however, regrettable, the only honest remedy to unwanted or unintended consequences of the text is to amend Constitution.

The pertinent passage in the Fourteenth Amendment provides “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . .”

There’s a reason the vast majority of Americans believe this clause provides birthright citizenship to almost every baby born on U.S. soil: it’s a reasonable reading of the clause. The natural reading of the provision is straightforward, any person born in the United States and within its legal jurisdiction, is a citizen of the United States.

Those persons not subject to the jurisdiction of the United States are pretty clear: Diplomats and enemy soldiers engaged in war against the U.S. on U.S. soil (think of the war of 1812). So, too, depending on the time period and varying treaty obligations with the distinct Native American nations in the 19th century, members of these nations did not fall within this jurisdiction either (again, depending on time and nation).

Arguing that the citizenship clause should be construed more broadly than that, Yale Law Professor Emeritus Peter H. Schuck and University of Pennsylvania political scientist Rogers M. Smith (who is also president elect of the American Political Science Association) argue in a recent article in National Affairs that “mutual consent between the parents and the U.S. government to their legal presence on U.S. soil as immigrants owing allegiance to the United States” is required for the U.S. to have qualifying jurisdiction to make a citizen.

This claim, however, is wrong both on methodological grounds (how they reach their conclusion) as well as on the substance itself.

As to methodology, Schuck and Smith appeal to a now generally rejected form of originalism, original intentions originalism. They write, “The most important and under-studied question in regard to the Citizenship Clause is the meaning of this phrase — then and now — given the framers’ and ratifiers’ intentions.” Because “The intention of the 14th Amendment’s framers or ratifiers specifically regarding the children of foreigners present in America in violation of U.S. laws is essentially impossible to discern” therefore they claim look to constitutional history and broad principals of constitutional theory. (Emphases added in both quotations.)

While originalism may have been identified with the subjective intentions of those drafting or adopting laws and constitutions when Schuck and Smith wrote their original book on the subject in 1985, originalism has evolved significantly since then. They move too quickly to history and theory, and short shrift the primary authoritative source, the text of the Fourteenth Amendment itself. Indeed, originalism evolved from the fruitless, even irrelevant, task of attempting to discern subjective intentions of legislators in the 1980s to textualism today. It is not subjective intentions that need to be understood for interpretation, it’s the objective text.

That “mutual consent,” as Schuck and Smith would have it, defines jurisdiction in the Fourteenth Amendment is impossible to sustain. First, let’s grant that the U.S. does not have legal jurisdiction over illegal aliens, per Schuck and Smith, because of the lack of consent on the part of the U.S. That would mean, like diplomats and foreign invaders in a conflict, that U.S. courts lack jurisdiction even to try illegal aliens in court for crimes without the permission of their home country. The U.S. could only expel illegal aliens, it could not try them and punish them if this view were taken seriously. Even the designation itself, “illegal” alien, connotes a legal jurisdiction these aliens have violated.

Further, the U.S. asserts legal jurisdiction all the time over individuals who have not consented to that jurisdiction. Indeed, if jurisdiction follows parental consent, I can well imagine a fair number of Americans on both the left and the right who would refuse that consent to deny the U.S. jurisdiction over their children despite their presence in U.S. territory.

Even if we proceed to history and principles, the “mutual consent” construction of qualifying jurisdiction for citizenship under the Fourteenth Amendment augurs for its rejection. This construction would, ironically, fail to achieve the manifest purpose for the clause. Schuck and Smith ostensibly gin up the principal of “mutual consent between the parents and the U.S. government” from America’s republicanism and central commitment to the “consent of the governed.” How does application of this principle extend citizenship to freed slaves who manifestly did not give their consent to be brought to this country? It is a supreme irony to suggest “mutual consent” is required for a citizenship clause aimed to grant citizenship to a set of individuals who were pointedly relocated in the United States without their consent.

One can lament implications of birthright citizenship in America today. It was created when it often took months, and an arduous journey, to travel to the U.S. Today the same distance can be traveled in a matter of hours. While changed circumstances can augur for changing the law, changed circumstances do not change an honest reading a text. To reject that is to start down the path of the contingent, always changing “living, breathing Constitution.” If Americans no longer desire birthright citizenship, then the means to implement that desire is to amend the Constitution and get rid of the provision that creates it.

Reader Discussion

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on November 01, 2018 at 12:37:56 pm

The short answer to all this is simply: the Constitution is not a suicide pact.

Sloppy drafting or simply the inability of us all to accurately see into the future can not operate to turn the Constitution into a national suicide pact.

We can also have fun with the question of whether the term "person" might be a term of act within the Constitution that at least assumes the person is lawfully present in the United States. We might also consider how or if the 14th Amendment conflicts with the "uniform Rule of Naturalization" clause of Art. I, § 8.

Clearly, Congress has the power to establish separate courts with their own rules for handling foreign invaders, whether or not they are armed and whether or not they acting as individuals or as agents for a foreign sovereign.

This is certainly a case were mechanical constitutional literalism is not the correct standard of review.

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on November 01, 2018 at 12:41:07 pm

"Art" not "act." in paragraph 3.

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on November 01, 2018 at 12:42:03 pm

Well, following rogers', if an illegal alien may be punished for a crime, then we must also assure that he receives all the Privileges and immunities of citizenship. after all, he is "subject to the jurisdiction".

It would be absurd to argue that ANYONE present in any country is NOT subject to criminal jurisdiction.
It does not, however, follow that the actions of some miscreant aliens and the state response to that offense THEREBy confers, recognizes or otherwise acknowledges a UNIVERSAL recognition of jurisdiction either on the part of the State or the illegal aliens.

Where is allegiance?

Were I one who believed in the 'mythical" state of nature, I would argue that an illegal alien voluntarily places him / herself in a state of nature when first they illegally cross the border of another nation.

As I do not believe so, I can only aver that while humans do have a right to travel, there must be a corresponding willingness to ACCEPT that traveler. simply sneaking into my home in the dead of night neither demonstrates your allegiance to me, my home / values nor makes you a member of my family.

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on November 21, 2018 at 16:10:37 pm

The problem with this analysis is that it enshrines the fact that the dicta from a left-wing Justice has changed the meaning of the Constitutional text cited above and now the argument is that we are stuck with it? That is wrong on the face of it. If the "plain meaning" are to be interpreted differently than the "plain meaning" of the words when written, the document becomes meaningless.

For example, why would Congress have had to pass a separate law making Indians citizens more than half a century after the 14th Amendment (THE INDIAN CITIZENSHIP ACT OF 1924) if the "plain meaning" of the language meant something?

The Constitution is living only to the extent that there are provisions for amendments, otherwise it is merely a document of whim of 5 (of 9) which in and of itself is the height of insanity. The Supreme Court has repeatedly ruled on the 13th, 14th, and 15th amendments, re-reading the document without context is a fools errand.

Some examples:
Just because "regulated" today means something different in the common vernacular than it did when the Bill of Rights was written doesn't mean that it changes the meaning of the 2nd Amendment. The meaning of the words when written is critical as is the intent.

The "plain meaning" of the 1st Amendment clearly states and is quite clear: "Congress shall make no law ... abridging the freedom ... of the press". The "plain meaning" means that newspapers and the written word on the internet is not protected 1st Amendment speech since there is no press involved. In fact, papers, magazines etc printed on laser printers or ink jet printers don't use a "press" and so are not protected. Now the intent here wasn't merely the press, since hand written text was also protected.

History and context will always matter to those who are serious about the law and the Constitution, to state otherwise states more about the goals and intellectual rigor of the legal community today instead of the state of originalism.

In short, there is no Supreme Court case stated that children born to illegal aliens are entitled to citizenship and no Congress has debated the issue and granted that right. The Slaughterhouse cases have some worthwhile reading:

We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery.

We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it.

The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship -- not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution. To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed.

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