John Eastman has taken me to task for what he calls my misreading of the language and history of the 14th Amendment in a recent op-ed I wrote for The Wall Street Journal. We’ve known each other for decades, and I consider Eastman a friend, but he’s simply wrong in thinking the children born to illegal immigrants in the United States are not entitled to birthright citizenship under the 14th Amendment.
The 14th Amendment says in plain English: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” But Eastman and a handful of immigration restrictionists argue that that Amendment excludes children born to illegal immigrants because they are not “subject to the jurisdiction” of the United States.
On its face, that position is absurd and would mean that illegal immigrants—like diplomats—could not be prosecuted for crimes they commit, since they have not subjected themselves to the jurisdiction of the United States. In trying to square this circle, Eastman suggests that the framers of the 14th Amendment had in mind a different interpretation of what it meant to be “subject to the jurisdiction” of the United States than common sense dictates. But his interpretation has been thoroughly refuted by one of the nation’s leading authorities on the history of the 14th Amendment, Professor Garrett Epps. As Epps demonstrates, Eastman misrepresents the Congressional debate on the 14th Amendment and misconstrues the groups excluded from birthright citizenship.
The phrase “and subject to the jurisdiction thereof” was added to the 14th Amendment to exclude two categories of persons: diplomats and Indians. Since diplomats and Indians were not subject to the laws of the United States, they could not be sued or prosecuted. Diplomats have always enjoyed such immunity, but Indians were a special case because they were members of tribes that enjoyed sovereign status within the United States. When Eastman quotes Sen. Trumbull as construing the jurisdiction phrase to mean subject to the “complete” jurisdiction “[n]ot owing allegiance to any body else,” he noticeably neglects to mention that he took the quotations from a colloquy involving the sole question of whether the disputed language adequately excluded Indians: “Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction,” offered Trumbull in response to a colleague.