Hayek was an originalist of a certain sort, one who favored an original meaning based on the words of the Constitution and the enactors' intent.
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.