Eastman is wrong: the Constitution does guarantee birthright citizenship

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.

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  • Free2

    I don’t really understand the attacks on Ms. Chavez in these comments. She is not arguing for amnesty or in favor of granting citizenship to the babies of illegal immigrants. She is simply saying that the best interpretation of the 14th amendment is that it grants citizenship to anyone born on US soil. I think she’s probably right (and no, des1, we are not the only country in the world where that is the case). If you think it’s wrong, you have two choices: try to fight the interpretation that has been in place basically forever, or change the law to be more explicit. According to this article, the latter would be a better approach.

    Personally, I don’t think it’s moral or American to stop people on the street and demand proof of citizenship. This is not the USSR. However, I think it is reasonable to ask for proof of citizenship if a person is taking advantage of tax-payer funded health care. In that case, like the parable of the Good Samaritan teaches, we need to provide care, but immediately after the person has healed, we can escort him or her out of the country. If the person in question has just had a baby, then that’s a good time for the new parent to decide whether to take the baby home or leave it here in the US.

  • Sproing

    Her argument, while interesting, is flawed by my way of thinking since we seldom hear of newborns or children under 8-9 being accused of ANY crime that might bring jurisdictional justice down on them. It has long been accepted that children under the ages of 16 depending on state are still minors before the law and are the responsibility of their parents. In the case of so called anchor babies they are under the jurisdiction of their parents and therefore should be considered to be under the jurisdiction of their parents country of citizenship. To automatically grant them the status of adults in so far as jurisdictional matters is concerned is to bend the law AND common sense beyond any reasonable understanding. Theses children are no more capable of recognizing or pledging their allegiance to the United States then I am of speaking Latin.

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  • Buckoux

    Linda Chavez is rendering the US Constitution into a “suicide pact”.

  • joelwisch2

    I don’t have as many characters as Linda has.. but this is also excellent in refuting what she has to say.
    Sen. Mitch McConnell defends hearings on birthright citizenship
    Senate Republican leader Mitch McConnell referred Thursday to what ‘seems to be a burgeoning and unseemly business’ of flying illegal immigrants to the US to give birth to a child, who would be a US citizen under the 14th Amendment.

    WALPIN: 14th Amendment never meant for illegals
    Proposed Texas law could force Supreme Court to decide

    Argument vs. birthright citizenship

    And it is important. The taxpayers pay for it, and the folks who support birthright citizenship want taxpayers held responsible for luring the illegal aliens over to have those babies. But also this article from FAIR.

    Welfare for Birthright Citizens.

  • TonyinMO

    There are just as many legal scholars who argue that the 14th Amendment does NOT include children of illegal aliens as ones who do. Illegal aliens who enter this country do not enter it with the intention of becoming American citizens and subject to American laws. They retain their allegiance to their home countries, thus making them NOT “subject to the jurisdiction thereof” the United States. The only reason for the 14th Amendment to be enacted was to ensure that slaves who were brought here against their will and children of those slaves, would be guaranteed American citizenship. 14th Amendment privileges were NEVER intended to extend citizenship to the progeny of people who entered this country illegally.

  • jabbathetutt

    Something about the illegal alien invasion (it’s not immigration) turns Linda Chavez from being a decent person into a willfully blind liar. I’ve listened to Mark Levin and other distinguished lawyers discuss the 14th Amendment. “Jurisdiction of the United States” does not mean “legal jurisdiction” and Linda Chavez knows it. Jurisdiction of the United States has to do with having allegiance to the United States. Illegal aliens are here within the United States by breaking our laws. They are here as citizens under the jurisdiction of their home countries. Indeed many carry id papers from their home countries.

    One of the unfounded, nutty ideas of the supporters of the illegal invaders is to provide “a path to citizenship”. What they never do is ask illegal aliens if they want to become American citizens. The elites don’t value American citizenship, they are post-American citizens of the world, so they don’t mind giving out American citizenship like bon bons.

    This is one unstated division between the Ruling Class and the Country Party. Ordinary Americans revere American citizenship and believe it shouldn’t be handed out to lawbreakers, who have questionable allegiances and show no evidence of actually wanting to become Americans. Maybe they’ll take citizenship, but it’s not out of a burning desire to become American.

    This American is sick to death of being lectured to by the Ruling Class in their abject incompetence, arrogance and dishonesty. This article is just one more example of that.

  • des1

    Gee, someone named Chavez saying that Hispanic illegals should be able to freely enter this country and immediately become entitlement recipients for life.

    Who’d a thunk it?

  • truebearing

    Not being a constitutional lawyer, I won’t claim to know the subtleties of this debate well enough to say definitively who is right in the debate between Eastman and Chavez. I can however, with no reservation, conclude that if the 14thA does give citizenship to the children of illegal aliens, it should be changed so that it doesn’t, immediately.

    Why would the constitution, our basis for all law, reward those who break the law? It makes no sense whatsoever.

    • des1

      Not to mention it would make us the only country in the world where someone can visit for 15 minutes, have a baby, and earn a permanent entitlement for it.