President Trump unleashed a firestorm this week when he said in an interview that he would end birthright citizenship by executive order. Because birthright citizenship is believed to be mandated by the citizenship clause of the 14th Amendment, many have erroneously interpreted Trump’s comments as a claim that he can unilaterally amend the Constitution. One legal commentator even called him an “authoritarian” for making the claim.
Of course, no president can unilaterally amend the Constitution. (Neither can the Supreme Court, by the way, but that’s a matter for a different article.) But that is not what Trump claimed. Rather, he has asserted — and has done so ever since first raising the issue back in the summer of 2016 — that the Constitution does not actually mandate automatic citizenship for anyone born on U.S. soil. If that is the case — and I believe it is — then an executive order on birthright citizenship would not only be constitutional, it would help clarify a major question in our legal system.
The 14th Amendment actually contains two requirements, not just one. “All persons born or naturalized in the United States” — that’s the birth part — “and subject to the jurisdiction thereof,” are automatically citizens. The first part is straightforward. More complicated is “subject to the jurisdiction.” What does that phrase mean? Or more precisely, what did it mean to those who ratified the amendment?
Today, we think of “subject to the jurisdiction” as synonymous with “subject to the laws.” But such a reading makes the phrase almost entirely redundant with “born in the United States,” because all people physically present in the United States – except foreign diplomats — are subject to our laws. We typically do not interpret constitutional text in ways that render it merely surplus.
There’s another way to interpret the phrase that avoids redundancy. At the time, “subject to the jurisdiction” could mean either a limited, “partial” or “territorial” jurisdiction, or it could mean a complete, allegiance-owing jurisdiction. Think of it this way: If a British citizen visits the United States as a tourist, she is bound by our laws to drive on the right side of the road rather than on the left. She is subject to our partial, territorial jurisdiction. But she does not owe allegiance to the United States, because she continues to owe allegiance to her home country.
So which of these two versions was intended by those who authored and ratified the 14th Amendment? The author of the actual language was asked that question directly, and he responded that it meant “a full and complete jurisdiction” and “the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
That meant, under the 1866 Civil Rights Act existing at the time, that “[all] persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The change in terminology from that law to the 14th Amendment was merely an acknowledgment that Native American tribes were domestic rather than foreign powers, and would not otherwise be covered by the exclusion.
That was the Supreme Court’s view as well. In the 1872 Slaughterhouse Cases, the court noted (albeit in dicta) that “[the] phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” That dicta became holding a decade later, in the 1884 case of Elk v. Wilkins, in which the Court denied automatic citizenship to a Native American born on U.S. soil because the 14th Amendment required that he 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.”
Legal Scholars often cite the 1898 case U.S. v. Wong Kim Ark as having overruled that original understanding. Not so. The case dealt with the child of Chinese immigrants who were lawfully and permanently domiciled in the United States. In other words, they were not merely subject to the partial jurisdiction of the United States, but had, with our permission, become lawfully domiciled here, which is to say, subject to our complete jurisdiction. That holding does not support the expansive claim that the children of mere temporary visitors are automatically citizens; even less does it support the claim of automatic citizenship for children born to parents who were never lawfully present in the United States in the first place.
In short, the Constitution does not mandate automatic citizenship for everyone born in the United States, no matter the circumstances. That is an error in interpretation that has crept into our national psyche over the past four or five decades. President Trump’s efforts to correct that error and restore the Constitution to its original meaning should be applauded. Then the power to decide how far above the Constitution’s citizenship floor we should go as a matter of policy would be returned to the Congress, to which the Constitution assigns the power over naturalization.
John Eastman is a senior fellow at the Claremont Institute and constitutional law professor at Chapman University.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.