Balkinization  

Wednesday, July 18, 2018

Birthright Citizenship and the 14th Amendment

Gerard N. Magliocca

Michael Anton is a former official in the Trump Administration. He is best known for writing (under the pseudonym Publius Decius Mus)  the "Flight 93" essay during the 2016 presidential campaign, in which he slandered the memories of the passengers of that doomed flight on September 11th, 2001 by comparing their courage to people who should vote for Donald Trump.

In today's Washington Post, Anton celebrates the 150th anniversary of the Fourteenth Amendment by distorting its first sentence. In "Citizenship Shouldn't Be A Birthright," Anton argues that the original understanding of that text excludes people born here to illegal immigrant parents from citizenship. Section One of 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 thereof . . ." Anton says that "subject to the jurisdiction" means "not owing allegiance to another country," which would thus exclude children born here to illegal immigrant parents. (Why children born here owe their allegiance to another country is not explained, but that's just one of the many problems with Anton's article.)

I wrote a law review article ten years ago explaining why Anton's argument is wrong. You can read that paper here. "Subject to the jurisdiction," means exactly what you would think from reading that phrase--"subject to American law." Illegal immigrants are, of course, subject to American law. That is why they can be deported. And why their children born here are citizens.

Suppose you are not convinced by my article. After all, I don't support President Trump. So I give you Judge James Ho, named by the President to the Fifth Circuit last year. Judge Ho has impeccable originalist credentials, as a law clerk to Justice Thomas, the Solicitor General of Texas, and a leading private practitioner before he took the bench. When he was in practice, Judge Ho demolished the Anton argument is a couple of published articles (such as here and here). Look at a key passage:

Proponents of ending birthright citizenship claim that aliens--lawful and unlawful--are not "subject to the jurisdiction" of the U.S. because they swear no allegiance to the United States. But neither the text nor the history of the 14th Amendment supports this conclusion. 
When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance. 
The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine. 
Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship --but no one disputed the amendment's meaning. Opponents conceded--indeed, warned -- that it would grant citizenship to the children of those who "owe [the U.S.] no allegiance." Amendment supporters agreed that only members of Indian tribes, ambassadors, foreign ministers and others not "subject to our laws" would fall outside the amendment's reach.
Thus, Anton's claim that "judges faithful to their oaths will have no choice but to agree" that birthright citizenship does not extend to the children born here to illegal immigrant parents is preposterous. Mr. Anton is free, like anyone else, to support for a constitutional amendment that restricts birthright citizenship. He cannot, though, escape the truth that the Constitution as written rejects his view.



Comments:

Is there anyone here, knowledgeable about the ways of the courts, who any longer believes they are not political in their behavior?
 

Well, the early opinions of Judge Ho is not likely to lead one to think differently.
 

In Trumpian logic, the immigrant is not subject to the laws, thus they live in a continual state of The Purge movies. This murder and mayhem is why we must build the wall--to keep their Constitutional purge out of our country. It's all we can do, since Democrats have no interest in amending the Constitution to keep them out.
 

Off topic ( or perhaps not in light of the political involvement of the courts), does anyone know of any mechanism by which President Trump could make former ambassador McPaul and/ or others resident ib the United States (Bill Browder) "available" to Russian investigators for questioning?
 

Extraordinary rendition?
 

This comment has been removed by the author.
 

The analogy between an invading army and illegal immigrants makes reasonable sense - both invaded in violation of our law excluding them from our territory.

However, distinguishing the two based on a standard interpretation of jurisdiction makes no sense because both are subject to the jurisdiction of our laws. Just like any other illegal alien, foreign soldiers within our nation are subject to criminal prosecution and expulsion under our laws.

Given the term of art “subject to the jurisdiction” does not apply to foreign soldiers, the concept must be something different than the standard interpretation of jurisdiction. What these two variations of illegal alien share is a refusal to subject themselves to the authority of our laws to exclude them from our territory.

Previously, I simply assumed the 14A provided birthright citizenship. Your article’s examination of the original meaning of the phrase “subject to the jurisdiction” has now convinced me otherwise.
 

Jack:

Nobody denies courts do political things. But it would be wrong, for all sorts of complicated institutional reasons, to reduce them to that except in the most blatant of cases.
 

There's an even more fundamental problem with Anton's ludicrous piece. He pretends that birthright citizens depends entirely upon the interpretation of the 14th Amendment, which he depicts as creating ius soli out of nothing. That's false. Birthright citizenship had been settled law in America since 1776 (see Lynch v Clarke [1844]).

The Civil Rights Act of 1866 had already given citizenship to the freed slaves. What the 14th Amendment did in 1868 is confirm that ius soli *is* the law governing everyone (with few exceptions) born in the US, including former slaves, by the simple device of making it a constitutional principle. That's why the 14th states in the first sentence that all persons born in the US "are", not "shall be", US citizens. It's emphatically describing current reality by using the present tense, not prescribing what "shall" happen in the future as the "shall" clauses in the second sentence do. The first sentence of the 14th Amendment is saying what everyone already knew, that birthright citizenship was and would continue to be the law of the land.
 

That should read "He pretends that birthright citizenship..."
 

I don't think Anton's is the best reading of the 14th amendment, but it's less loony than many constitutional theories that have prevailed.

Still, I'd favor an amendment to make it unambiguously clear that your children can't get birthright citizenship based on your being present in the US as a tourist or illegal immigrant, or invading army.
 

"The analogy between an invading army and illegal immigrants makes reasonable sense "

To a post-modernist maybe


 

No, it does make perfect sense: In both cases, we're talking about people who are present in our country contrary to our government's laws and policies.

And often illegal immigrants are here as a result of an explicit decision by a hostile government. This is certainly the case for illegal immigrants crossing out southern border, as Mexico has long had a policy of facilitating and even encouraging illegal immigration into the US.

But even when this is not the case, illegal immigrants are only doing retail what armies do wholesale:

Invading.
 

Mr. W:

Gerard is a post-modernist?

I am commenting on his linked article.
 

This comment has been removed by the author.
 

It's not the "best" reading? The reading blatantly doesn't match the text or original understanding, which is the point of the original discussion's citation of Judge Ho. OTOH, applying equal protection of "persons" to apply to "persons," even in ways people in 1868 would not have understood as "equal" fits one & at least in some ways the other (by looking at the basic principle being promoted etc.).

If "invading army" (people with guns who come to seize control of sovereign territory and are not under the "jurisdiction" of said territory) and "people who come here to work and otherwise follow the laws (are under jurisdiction) except documentation laws that loads of people in some fashion violate & people blithely don't care about it much [e.g., unlicensed beauticians or plumbers]" are so comparable, people who complain about misuse of constitutional language should not throw stones in glasshouses.

A constitutional rule that by rule -- not even leaving the government open to do so in certain situations -- deny children who were born here because their parents are undocumented is a cruel policy that is prudentially a bad idea. A group of people who are not citizens by birth of the nation they were born into and lived all their lives, citizens of a foreign land they never knew, is unjust and will cause various problems.

The 14A rule is best but some don't like the Constitution in various ways. This is fine. But, some parts of it deserve to stay in place.
 

"It's not the "best" reading? The reading blatantly doesn't match the text or original understanding,"

Which would rather preclude it being the best reading, no? Since at least Filburn, it's been obvious that not matching the text or original understanding is no obstacle to a view of the Constitution being adopted by the Supreme court. But I think you exaggerate how bad a reading it is.

"people who come here to work and otherwise follow the laws"

You know, aside from the laws that say they can't be here, and can't work, and aren't supposed to provide forged documents attesting to the contrary, aren't supposed to drive without a license or insurance, aren't supposed to fraudulently obtain public benefits...

It's theoretically possible to illegally immigrate to the US and not violate a whole bunch of laws in the process, but most illegal immigrants aren't content with living in the howling wilderness off roots and berries.
 

هل تبحث عن شركة متخصصة فى خدمات التنظيف بالطائف بافضل المعدات والسوائل وثقة تمة فى العمل ودقة فى النتائج كل هذه المميزت توفرها شركة الخليج الشركة الافضل والامثل فى الخدمات المنزلية بالطائف وبما اننا الشركة الافضل والامثل بدون منافس سوف نسعى لتوفر افضل الخدمات باقل تكلفة وبقدر كبير من الاهتمام والدقة عزيزى اينما كنت فى اى منطقة ا وحى تابع لمدينة الطائف اتصل بنا وسوف نصلك فى الحال شركة الخليج للخدمات المنزلية شركة تنظيف منازل بالطائف
شركة تنظيف فلل بالطائف
شركة تنظيف خزانات بالطائف
شركة تسليك مجارى بالطائف
شركة رش مبيدات بالطائف
شركة مكافحة نمل ابيض بالطائف
شركة مكافحة حشرات بالطائف
شركة عزل اسطح بالطائف
شركة عزل خزانات بالطائف

 

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Brett tries to be coy on what "best reading" means but then maybe seeing it's so obvious what I meant goes to disagreeing with me (and Trump appointee Judge Ho) on how "bad" the reading actually is. His flexible use of language again leads me to say "glasshouses."

The violation of documentation here is a misdemeanor. People blithely don't care that people run businesses without documentation and don't use terms like "illegals" for such people even when they do things like run unlicensed vehicles that might be a threat to public safety -- licensing rules in place to protect it. The undocumented people here still are basically lawful members of society subject to the laws (including for violating the laws cited). Invading armies are not like that.

The term is being abused. I put aside people like children and so forth who are cited as part of these "invading armies."

The immigrants in question are not living in the wilderness. They are working in a range of industries that the public at large willingly accept them, in fact (much more than the Mr. W. refuted Mexico incitements referenced) encourages in many ways. This includes the level of concern being shown on the ground as compared to take a random metaphor "bank robbers." A minority wants to seriously alter the system in place to stop them but even many of them probably wouldn't mind many of these people doing various jobs they are doing now.

OTOH, actual military invaders are not invited or enabled in quite that way, with certain exceptions.
 

"aren't supposed to drive without a license or insurance, aren't supposed to fraudulently obtain public benefits"

Driver's licenses and various types of public benefits would depend on local law.

The conservative's concern here with following government regulations is duly noted, as are the misguided nature of some of these regulations, but again various citizens and documented residents violate various regulations here w/o being "invading armies" including citizens who move to new states not "invading" said states as some might have thought of Okies.

Since Brett thinks the "original understanding" was not followed in the 19th Century either, in respect to the 14A, citing Filiburn is yet again selective "golden age" talk. The point holds. It simply is so unreasonable that people of very different political and constitutional visions can see it as dead wrong.
 

I particularly like the idea that unlicensed contractors drive illegal nails. Or is it illegally drive nails? Eh, charge 'em twice.
 

Joe: The violation of documentation here is a misdemeanor. People blithely don't care that people run businesses without documentation and don't use terms like "illegals" for such people even when they do things like run unlicensed vehicles that might be a threat to public safety -- licensing rules in place to protect it. The undocumented people here still are basically lawful members of society subject to the laws (including for violating the laws cited). Invading armies are not like that.

Illegal aliens did not merely neglect to obtain or lose "documentation." They are not eligible for documentation in the first instance.

The fact illegal aliens work for our businesses and invading armies do not is also irrelevant.

The common denominator and bottom line is invading armies and all other types of illegal aliens are here in violation of our laws..
 

If Congress were to pass a law banning births beyond the first child and a second child were born, would it be an illegal alien?
 

This Bart guy is a racist crank who self-published a book back in 2011 about Obama being a black socialist and now he's comparing newborns to invading armies.
 

Prof_Scott said...If Congress were to pass a law banning births beyond the first child and a second child were born, would it be an illegal alien?

:::heh:::

Illegal, perhaps, but not an alien.
 

**Illegal, perhaps, but not an alien.**

The product of an illegal act, assuredly. Not a citizen?
 

I think the analogy between illegal immigrants and invading soldiers is fairly good.

The problem is that the argument that children born in the US of parents not legally here aren't "subject to the jurisdiction" of the US is kind of sketchy. Just sketchy, not drop dead wrong.

In fact, Senator Howard seems to have agreed with Mr. Alton on this question.

I think a Supreme court that wanted to end birthright citizenship for the children of illegals would not have much trouble adopting this position. However, I don't expect to see such a Court in my lifetime.
 

Attention Judge Ho and the author of a book on John Bingham. Brett found a link!

The analogy between undocumented persons and invading soldiers is bad. I realize you think it's good. But, for reasons offered, it is not. Neither are the people in detention, including young children, actually prisoners of war. Note too that "invaders" actually legally is a specific thing and undocumented immigrants are not treated that way legally.

The Supreme Court probably have a problem with overturning a century of law that has not developed because of changing facts on the ground (ala Plessy vs. Brown or Bradwell v. modern sex equality cases) especially since strong originalists like Judge Ho find that argument wrong particularly given the actual text.

But, if the right people were put on SCOTUS, in theory it could happen though simply for the radical change on the ground of the status of loads of people, including those born in this country and who lived here all there lives, would occur. Significant change does occur: Brown v. Bd. was a major change. But, there was "much trouble" involved.

So, even there, seems doubtful. Maybe we will have another "black swan" event.


 

I think you're aware that "analogies" are not "identities"; If you're saying something is a good analogy, you're not claiming it's the same in ALL respects, just in some relevant respects.

The relevant respect in which invading armies and illegal immigrants are the same, is that they are both present contrary to law and government policy, and illegal immigrants are often here as a consequence of the policies of a hostile state. If they were the same in all respects, we wouldn't need different terms for them.

"Maybe we will have another "black swan" event."

Indeed, that's about the only way I see a legal challenge to birthright citizenship being successful: If it were in the wake of some 9-11 scale disaster. However, I don't quite see how birthright citizenship could lead directly enough to such to prompt this.

OTOH, were we to have a constitutional convention, I wouldn't be surprised if ending birthright citizenship for the children of those who are not at least legal resident aliens, going forward, were not discussed.
 

Joe: The analogy between undocumented persons and invading soldiers is bad. I realize you think it's good. But, for reasons offered, it is not. Neither are the people in detention, including young children, actually prisoners of war. Note too that "invaders" actually legally is a specific thing and undocumented immigrants are not treated that way legally.

The question is not whether different laws apply to the two categories of illegal aliens - invading soldiers or economic migrants.

The question is why the term of art “subject to the jurisdiction” in Anglo American law does not apply to invading foreign soldiers when they, in fact, do fall under the jurisdiction of our laws and are subject to criminal prosecution, detention and expulsion. Thus, the term of art cannot be viewing jurisdiction from the point of view of the government, but rather from the invader, who is disregarding the law excluding them from our territory.

Once you understand the term of art “subject to the jurisdiction” means the alien does not recognize our law's jurisdiction over her, then invading soldiers, economic migrants or any other species of illegal alien all fall under the same category for the purposes of the 14A.



 

Yes, I'm aware of the meaning of the word, Brett.

They aren't the same in the relevant way. We have been thru this with another analogy too.

I guess this is one of those things -- with certain exceptions -- different sides can agree on, so there is that going for it: https://reason.com/volokh/2018/07/19/a-bad-argument-on-birthright-citizenship
 

We just disagree about what aspect is relevant.
 

I thought better of declining to re-post on colonial era apportionment, but missed the time deadline for that thread. Here's a link to the basic article: https://www.brennancenter.org/sites/default/files/legal-work/Apportionment%20of%20State%20Legislatures%201776-1920.pdf
 

Let's say some male members of an invading army impregnate some women (whether consensual or otherwise) who are American citizens who, for religious reasons or otherwise, carry to term children born here in the US of A that they raise after the invading army leaves or is captured. Would our comrades-in-arms SPAM and Brett take the position that such children are not or should not be American citizens? Or is SPAM and Brett's invading army exception to birthplace citizenship one where the child is born to parents who both are part of the invading army? (I wonder if Iraq addressed this issue with the two invasions of Iraq; maybe SPAM knows.)
 

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