The Constitution doesn’t grant citizenship to the children of illegals

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Update: Linda Chavez responds to Eastman’s arguments here.

From the very opening of her “Case for Birthright Citizenship,” published in the August 11 issue of The Wall Street Journal, my good friend Linda Chavez demonstrates a misunderstanding of both the Fourteenth Amendment’s Citizenship Clause and the recent efforts by Republican leaders in Congress to address the very significant inducement to illegal immigration that birthright citizenship provides.  Although sometimes inartfully expressed, the argument is not that the Fourteenth Amendment should be amended to repeal birthright citizenship but that, properly understood, the Fourteenth Amendment does not actually guarantee birthright citizenship nearly as broadly as Chavez claims.

Here’s the crux of the dispute.  The text of the Fourteenth Amendment’s Citizenship Clause 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.”  That text has two requirements: 1) Birth on U.S. soil; and 2) Being subject to the jurisdiction of the United States when born.  In recent decades, the opinion has taken root, quite erroneously, that anyone born in the United States (except the children of ambassadors) is necessarily subject to its jurisdiction because everyone has to comply with our laws while physically present within our borders.  Those who drafted and ratified the Fourteenth Amendment had a different understanding of jurisdiction.  For them, a person could be subject to the jurisdiction of a sovereign nation in two very different ways: the one, partial and territorial; the other full and complete.  Think of it this way.  When a tourist from Great Britain visits the United States, he subjects himself to our “territorial jurisdiction.”  He has to follow our laws while he is here, including our traffic laws that require him to drive on the right rather than the wrong (I mean left!) side of the road.  He is no longer subject to those laws when he returns home, of course, and he was never subject to the broader jurisdiction that requires from him allegiance to the United States.  He can’t be drafted into our army, for example, or prosecuted for treason for taking up arms against us.

So which of the two understandings of jurisdiction did the drafters and ratifiers of the Citizenship Clause have in mind?  Happily, we do not need to speculate about that, as the drafters of the Fourteenth Amendment were quite explicit when asked this very question.  Senator Lyman Trumbell, a key figure in the drafting and adoption of the Amendment, stated that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”  And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction” requirement as applied under the 1866 Civil Rights Act, which afforded citizenship to “all persons born in the United States and not subject to any foreign power.”  Although the subsequent ratification debates are not very comprehensive, one thing is quite clear: Everyone understood that the Fourteenth Amendment was at least designed to constitutionalize the 1866 Civil Rights Act, with the birthright citizenship caveat that one not be “subject to any foreign power.”

The first couple of Supreme Court cases to address the Citizenship Clause agreed with this interpretation.  In The Slaughter-House Cases, which were decided in 1872, the Court noted (albeit in dicta) that “[t]he phrase, ‘subject to the jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”  The Court was unanimous on this point.  That interpretation was also the Supreme Court’s holding in the 1884 case of Elk v. Wilkins, in which a Native American who had been born on a reservation within the United States and later renounced his tribal allegiance claimed the benefits of birthright citizenship because he was subject to the jurisdiction of the United States through his tribe, which was a dependent sovereign.  The Court rejected the claim, holding that the Citizenship Clause required that one be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”  The great constitutional law treatise writer of the era, Thomas Cooley, summarized the position this way: “subject to the jurisdiction” of the United States “meant . . . full and complete jurisdiction to which citizens [are generally] subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

That’s the history, and it is not a “misreading” of it, as Chavez claims, to agree with the drafters of the Fourteenth Amendment, the Supreme Court’s decisions shortly after adoption of the Amendment, and the leading treatise writer of the day that the Citizenship Clause requires full and complete jurisdiction, not merely temporary or partial jurisdiction, before citizenship is automatically conferred as a birthright.

Chavez looks instead to the 1898 Supreme Court decision in United States v. Wong Kim Ark, decided thirty years after the Fourteenth Amendment was adopted.  Although the language in the opinion, mostly dicta, is rather broad, the actual holding of the case is not nearly as broad as Chavez portrays.  Wong Kim Ark was born on U.S. soil to the parents of lawful, permanent residents of the United States.  His parents had done everything they could to subject themselves to the complete jurisdiction of the United States, even though a rather racist law and equally despicable treaty would not let them become citizens here.  Given these circumstances, the Supreme Court held that Wong Kim Ark was a citizen.  Not reached by the Court, because not at issue, was whether a child born to someone here only temporarily, or even illegally, would also qualify for automatic citizenship.  More than a century later, that issue still remains unresolved by the Supreme Court.  But if the Court adheres to the original understanding of the Fourteenth Amendment when it eventually confronts the issue, we’ll find that the threshold for automatic citizenship is actually a bit higher than mere birth on U.S. soil.  While Congress retains the authority to offer citizenship more broadly, that is a policy judgment that our Constitution assigns to the Congress, not to the courts.

Dr. Eastman is the Donald P. Kennedy Chair in Law and former Dean at Chapman University School of Law in Orange, California.