John Yoo and David Rivkin write for Los Angeles Times, September 6, 2015
Donald Trump’s call to end birthright citizenship has roiled the Republican presidential primary. Jeb Bush, John Kasich and Marco Rubio embrace the traditional view that the Constitution bestows citizenship on anyone born on U.S. territory. Ben Carson and Rand Paul agree with Trump that Congress could dismantle birthright citizenship by itself. Meanwhile, Ted Cruz acknowledges birthright citizenship but seeks a constitutional amendment to abolish it.
Conservatives should reject Trump’s nativist siren song and reaffirm the legal and policy vitality of one of the Republican Party’s greatest achievements: the 14th Amendment. Under its text, structure and history, anyone born on American territory, no matter their national origin, ethnicity or station in life, is a U.S. citizen.
Although the original Constitution required citizenship for federal office, it never defined it. The 14th Amendment, however, provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Congress did not draft this language to alter the concept of citizenship but to affirm American practice dating from the origins of our republic.
With the exception of a few years before the Civil War, the United States followed the British rule of jus solis (citizenship defined by birthplace) rather than the rule of jus sanguinis (citizenship defined by that of parents), which still prevails in much of continental Europe. As the 18th century English jurist William Blackstone explained: “The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.”
After the Civil War, congressional Republicans drafted the 14th Amendment to correct one of slavery’s grave distortions of our law. In Dred Scott vs. Sanford (1857), Chief Justice Roger Taney found that slaves, even though born in the United States, could never become citizens. The 14th Amendment directly overruled Dred Scott by declaring that anyone born in the U.S., irrespective of race, is a citizen. It also removed from the majoritarian political process the ability to revoke the citizenship of children born to members of disfavored ethnic, religious or political minorities.
The only way to avoid this straightforward understanding is to misread “subject to the jurisdiction thereof” as an exception that swallows the jus solis rule. Some scholars have argued that this language must refer to aliens, who owe allegiance to another nation and not the United States. We disagree.
Proponents of “allegiance” citizenship do not appreciate the consequences of opening this Pandora’s box. Among other problems, such a standard could spell trouble for millions of dual citizens, who certainly owe allegiance to more than one country. This is not an entirely speculative concern; during World Wars I and II, public sentiment ran strongly against German Americans or Japanese Americans.
More generally, the whole notion of national loyalty is open-ended, requires person specific determinations and would put the government in the business of reviewing the ancestry of its citizens. Washington and the states would have to pour even more resources into already dysfunctional immigration and security bureaucracies that cannot even control the borders. Reading allegiance into the 14th Amendment would largely defeat the intent of its drafters, who wanted to prevent politicians from denying citizenship to those they considered insufficiently American.
As a matter of constitutional interpretation, the 14th Amendment’s reference to jurisdiction means only that the children fall under American law at birth. Almost everyone in the United States, even aliens, come within our jurisdiction; otherwise, they could violate the law with impunity. “Subject to the jurisdiction thereof” refers to discrete categories of people that American law does not govern, such as diplomats and enemy soldiers occupying U.S. territory during war. International law grants both diplomats and enemy soldiers protected status, when present on the soil of another state, from the application of that state’s laws.
At the time of the 14th Amendment’s ratification, one obvious group not subject to U.S. jurisdiction: Native Americans living on tribal lands; the tribes exercised considerable self-governance. In the late 19th century, the federal government began to regulate Indian life, substantially diminishing tribal sovereignty and in 1924 extended birth citizenship to them as well.
The 14th Amendment’s drafting history supports our reading. The Civil Rights Act of 1866, which inspired the amendment, guaranteed birthright citizenship to anyone born in the U.S. except those “subject to any foreign power” and “Indians not taxed.” If the 14th Amendment’s drafters had wanted “jurisdiction” to exclude children of aliens, they easily could have repeated the “foreign power” line.
Significantly, congressional critics of the amendment recognized the broad sweep of the birthright citizenship language. Sen. Edgar Cowan of Pennsylvania, a leading opponent, asked: “Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?” Sen. John Conness of California responded yes, and later lost his seat because of anti-Chinese sentiment in his state. The original public meaning of the 14th Amendment, which conservatives properly believe to be the lodestar of constitutional interpretation, affirms birthright citizenship.
Our position, finally, works no great legal revolution. The Supreme Court has consistently read the 14th Amendment to grant birthright citizenship. United States vs. Wong Kim Ark (1898) upheld the American citizenship of a child born in San Francisco to Chinese parents, who themselves could never naturalize under the Chinese Exclusion Acts. The court held that “the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” It also explicitly rejected the argument that aliens, because they owed allegiance to a foreign nation, were not within the jurisdiction of the United States.
Critics of birthright citizenship respond that the Wong Kim Ark decision does not apply to the children of undocumented immigrants because Wong’s parents lived here legally. But in 1898, federal law did not distinguish between “legal aliens” and “illegal aliens,” so the court’s opinion could not turn on the parents’ legal status.
In Plyler vs. Doe (1982), moreover, the Supreme Court held 5 to 4 that the equal protection clause required Texas to provide public schooling to children of unauthorized immigrants. All nine justices agreed that “no plausible distinction with respect to the 14th Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful.”
The 14th Amendment settled the question of birthright citizenship once and for all. Conservatives should not be the ones seeking a new law, or even a constitutional amendment to reverse centuries of American tradition.
David Rivkin is a constitutional litigator and served in the Reagan and George H.W. Bush administrations. John Yoo is a professor of law at UC Berkeley and a visiting scholar at the American Enterprise Institute. He served in the George W. Bush administration.