John Yoo writes for National Review, August 22, 2015
Donald Trump stoked the immigration fires that are burning up the Republican party by proposing an end to birthright citizenship. This week he claimed that children of aliens who are born on U.S. territory “do not have American citizenship” and that their right is “not going to hold up in court.”
Trump’s argument runs headlong into the Constitution. His proposal shows, once again, that while he may be running as a Republican, he is not running as a conservative. Conservatives believe in following the Constitution’s text, as understood by those who wrote and ratified it and with due regard for the course of American history and traditions. They reject the notion of a living Constitution whose meaning can change to fit the popular demands of the moment.
Trump’s proposal to end birthright citizenship can survive only with a plastic, malleable Constitution. Those who just two months ago decried the Supreme Court’s imposition of same-sex marriage throughout the nation should be the first to reject Trump. His eagerness to read native-born children out of the Fourteenth Amendment smacks of the same liberality toward the Constitution which afflicted the Supreme Court in Obergefell v. Hodges. The text, structure, and history of the Constitution all show that the 14th Amendment recognizes the citizenship of any child born on American territory.
First, the constitutional text. Section One of the 14th Amendment states: “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.” The constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.
Congress drafted and sent the amendment to the states for ratification not to change the definition of citizenship, but to affirm American practice in effect ever since the Revolution. While the original Constitution mentions citizenship as a requirement for federal office, it does not define it. Borrowing from the English common law (which admittedly defined subjects rather than citizens), the United States has always filled this gap by following jus solis (citizenship defined by soil, i.e., birthplace) as opposed to jus sanguinis (citizenship defined by blood, i.e., citizenship of the parents).
Trump and his supporters (including some writers for National Review) may draw support from the phrase “and subject to the jurisdiction thereof.” Some have argued that this language must exclude the children of aliens from citizenship, because aliens owe allegiance to another nation and hence are not under “the jurisdiction” of the United States. But the constitutional text requires only that the children born in the United States fall subject to American jurisdiction, which means that they are governed by American law. Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment. Other uses of “jurisdiction” in the Constitution, such as in the 13th and 14th Amendments, also refer to the power to govern by law, not national allegiance.
Instead, “subject to the jurisdiction thereof” refers to certain discrete categories of people excluded from citizenship, even though they might be born on U.S. territory. These include the children of diplomats and enemy soldiers at war who are occupying territory. These individuals could be on U.S. territory, but are not subject to U.S. law. A third and obvious category was American Indians. At the time of the 14th Amendment, American Indians were still considered semi-sovereigns who governed themselves with their own laws and made treaties with the United States. But “subject to the jurisdiction thereof” did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship. Instead, the phrase recognized a few narrow exceptions to the general principle of birthright citizenship that has prevailed throughout American history.
Second, constitutional history. There is only one blemish on the American tradition of birthright citizenship: Dred Scott v. Sanford (1857). In that notorious case, Chief Justice Roger Taney led a majority of the Supreme Court in striking down the Compromise of 1850, which limited slavery in the territories. Taney found that slaves were property and they, and their children, could never be citizens, even though born in the United States. Dred Scott helped precipitate the tragedy of the Civil War by preventing Congress from limiting the spread of slavery and reaching a compromise between North and South. Section One of the 14th Amendment directly overruled Dred Scott’s selective grant of citizenship to some races but not others.
The universal nature of birthright citizenship was made clear in the amendment’s drafting history. During congressional consideration, critics argued that the text would recognize as citizens the children of aliens. In particular, these opponents wanted to allow the western states to “deal with [the Chinese] as in their wisdom they see fit.” Senator Edgar Cowan of Pennsylvania asked: “I am really desirous to have a legal definition of ‘citizenship of the United States.’ What does it mean?” Cowan asked: “Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?”
Supporters of the 14th Amendment agreed with Cowan’s reading, even though it may have lost votes for their proposal. Senator John Conness of California replied to Cowan: “The provision before us . . . relates to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so.” Conness would lose his Senate seat because of his defense of the rights of Chinese immigrants, but the amendment would go to the states for ratification on the understanding that it granted birthright citizenship to the children of aliens.
Third, Supreme Court precedent. Ever since ratification of the 14th Amendment, the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory. The Supreme Court’s reading of the Constitution does not automatically bind the other branches of government or the people — that is another lesson of the Civil War. Abraham Lincoln, for example, rose to prominence by attacking Dred Scott and pledging not to enforce the opinion beyond the parties to the case. But this is one decision of the Court with which he would have agreed.
In United States v. Wong Kim Ark (1898), the Supreme Court faced the birthright-citizenship question directly. Ark involved a child born to Chinese parents in San Francisco. The child left the United States for a trip but was barred from returning to the United States under the Chinese Exclusion Act. While the parents remained Chinese citizens, the child claimed U.S. citizenship under the birthright reading of the 14th Amendment. The Supreme Court upheld the child’s citizenship by virtue of his birth in San Francisco. While Congress could block immigration entirely or control the process of naturalization, it could not alter the right of citizenship for all born within American borders.
The Court read the 14th Amendment to recognize the existing American practice of granting citizenship based on birthplace. It saw no support for a new exclusion of the children of aliens. “The Fourteenth 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.” The Justices explained that the phrase “and subject to the jurisdiction thereof” only codified the existing exclusions for children of “alien enemies in hostile occupation,” “diplomatic representatives of a foreign state,” and “members of the Indian tribes.” Only these categories “had been recognized exceptions to the fundamental rule of citizenship by birth within the country.” The Court explicitly rejected the claim made today by some that aliens, because they owed allegiance to a foreign nation, were not within “the jurisdiction” of the United States. Instead, the Court concluded that the amendment “in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
The Supreme Court has never seen fit to question its original judgment in Wong Kim Ark. In this case, unlike others (such as Obergefell), the Supreme Court read the constitutional text, structure, and history exactly right.
Of course, the American people can always amend the Constitution to change the principle of birthright citizenship. Putting to one side the waste of time and resources entailed, amending the Constitution would be a sorry mistake. Rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party. It was the Republican party that opposed Dred Scott. It was the Republican party that fought and won the Civil War. And it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race. If we are to discard one of the greatest attributes of American exceptionalism, let it be the handiwork of nativist Democrats and candidates who appeal to the lesser angels of their nature.
— John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. A former Bush Justice Department official, he is the author, most recently, of Point of Attack: Preventive War, International Law, and Global Welfare.