n August 2015 John Eastman’s article, “We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship,” appeared in National Review Online. The prevalent understanding of the 14th Amendment in our time, Eastman argued, “allows those who continue to owe allegiance to a foreign power to demand American citizenship for their children, unilaterally and as a result of their illegal conduct.” And to oppose this interpretation, he concluded, is to take a position grounded in both the rule of law and the founding principle that governments derive their just powers from the consent of the governed.
We’re happy to continue, here, consideration of the points Eastman raised with the help of Linda Chavez. She is chairman of the Center for Equal Opportunity, a conservative think tank devoted to issues of race and ethnicity. Ms. Chavez held several positions during Ronald Reagan’s presidency, including staff director of the U.S. Commission on Civil Rights, and is the author of three books. Dr. John C. Eastman is Founding Director of the Claremont Institute’s Center for Constitutional Jurisprudence, and currently serves as the Henry Salvatori Professor of Law & Community Service at Chapman University’s Dale E. Fowler School of Law. He is also a Senior Fellow of the Claremont Institute.
Linda Chavez: “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.” This 14th Amendment guarantee of “birthright citizenship,” regardless of parentage (with some extraordinary exceptions), has long been considered a matter of settled law … that is, until anti-immigration groups began raising questions about it in the context of illegal immigration. The surge in illegal immigration peaked between 1995 and 2000. Contrary to popular opinion and conservative rhetoric, it has subsequently declined dramatically over the last few years to rates lower than those seen in decades. Nonetheless, some 10.9 million persons now reside in the country illegally. Two thirds of these people have lived here more than a decade, set down roots, and many have become parents to an estimated 4.5 million children born on U.S. soil.
John Eastman’s interpretation of the 14th Amendment would strip these children of U.S. citizenship. But it would do far more. Taken to its logical conclusion, Eastman’s interpretation would throw into question the right to birthright citizenship for many others as well. A host of constitutional scholars have arrived at a very different understanding of the text, legislative history, and case law, but I hope to offer a novel argument that I believe further undermines his thesis.
Eastman rests his case on six words within the Amendment: “and subject to the jurisdiction thereof.” Eastman claims that illegal migrants are not subject to the jurisdiction of the United States, though he parses his words carefully. He draws a distinction between what he refers to as “partial, territorial jurisdiction” and “complete, political jurisdiction.” The former, he concedes, covers illegal immigrants who are subject to American laws while on U.S. soil: otherwise, the debate about their legal status would be irrelevant and they could commit crimes and engage in civil offenses without fear of prosecution (as diplomats and their families may). But even if we accept Eastman’s definition, it is quite a leap to go from asserting that illegal immigrants themselves are not subject to “complete, political jurisdiction” to insisting that neither are their American-born children.
The Senate debated the term “subject to the jurisdiction thereof” at some length before approving the Amendment in 1866. Senator Jacob Howard of Michigan, who introduced the specific language for discussion, thought the issue of citizenship was straightforward: “this amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United Sates, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.” Howard went on to name a single exception—diplomats’ children—one universally accepted among nations: “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons born in the United States.” [emphasis added]
Howard’s words have been seized upon by birthright citizenship’s opponents, who claim that the words “foreigners, aliens,” were the object of Howard’s exclusion. But doing so requires a willful misreading of Howard’s words—or a lack of understanding of English grammar. The words “foreigners, aliens,” are in apposition to each other; that is, they mean the same thing and are repeated for effect. More importantly, the words do not stand alone; they are followed by a restrictive modifying clause: “who belong to families of ambassadors or foreign ministers.” Howard intended to exclude only those foreigners (i.e. aliens) who belong to the families of ambassadors or foreign ministers; otherwise, as he clearly stated, all other persons born in the U.S. were to be considered citizens by birth. In his National Review article, Eastman cleverly inserts his own “[or]” before the restrictive clause in Howard’s quotation. But no such “or” is in the original! Neither is one intended, as the full debate makes clear.
Early in the debate Senator Edgar Cowan of Pennsylvania objected to the Amendment. “Is the child of the Chinese immigrant a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they? Have they any more rights than a sojourner in the United States?” Cowan went on at some length about the dangers of granting citizenship to members of the “Mongolian race” simply because they were born on U.S. soil. And his descriptions of “Gypsies” might find echoes today in the descriptions of illegal immigrants from Mexico found on nativist websites or heard on talk radio: “people who invade her borders; who owe to her no allegiance; who pretend to owe her none;…who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen.”
Senator John Conness of California responded with biting wit: “But why all this talk about Gypsies and Chinese. I have lived in the United States for many a year, and really I have heard more about Gypsies within the last two or three months than I have heard before in my life.…Here is a simple declaration that a score or a few score of human beings born in the United States shall be regarded as citizens, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens; and that such a provision should be deprecated by any person having or claiming to have a high humanity passes all understanding and comprehension.”
What is striking about this exchange—and indeed all the subsequent debate over the term “subject to the jurisdiction thereof”—is that no further controversy or opposition arose to the notion that children born to aliens were presumed citizens by birth. The remainder of the debate on this portion of the amendment centered on whether its inclusion would unintentionally grant citizenship to Indians, who were deemed members of sovereign nations—tribes—with whom the United States had signed treaties granting civil, criminal, and political jurisdiction to tribal governments. Indians numbered less than 300,000 in 1866, and while relations with them were anything but harmonious and inclusive, they posed no political threat. Immigrants, on the other hand, certainly did; they constituted some 14 percent of the U.S. population at the time. Between 1860 and 1870 the foreign-born population grew from 4.1 million to 5.5 million. More than 20 percent of the U.S. population were foreign-born or their American-born children. One would have thought that if there was any question whether the children of immigrants were entitled to birthright citizenship, the issue would have come up (beyond Cowan’s Gypsy and Chinese scare) in a debate that fills more than 400 pages. It didn’t, though one could imagine that there were nativist politicians then, as now, who would have been eager to voice the opinion that the wording denied citizenship to the children of non-naturalized immigrants.
Immigrants were hardly embraced with open arms in the latter half of the 19th century, their numbers notwithstanding. There was much resentment, considerable discrimination, and outright hostility, even violence, toward the Germans, Irish, Norwegians, Swedes, Hungarians and other aliens flooding our shores. Eastman correctly notes that there was no such thing as an “illegal immigrant” in 1866 because the nation had, in effect, open borders. Those who wanted to immigrate simply showed up on U.S. shores or crossed the border from Mexico or Canada, began working, eventually married (if they weren’t already), and gave birth here to…U.S. citizens.
From the Founding, American practice incorporated the English Common Law of jus solis, which granted citizenship based on the child’s birthplace, not that of his parents or ancestors, as was the practice throughout much of Europe. The infamous Dred Scott decision ignored this precedent by declaring that no person descended from African ancestry, even if emancipated, free-born or living in a state that did not permit slavery, was entitled to U.S. citizenship under the Constitution, which was the precipitating factor in drafting the 14th Amendment. But the fact that the amendment was drafted to supersede Dred Scott does not restrict its application, and certainly not in a manner that would have overturned the law and practice of the time with respect to jus solis.
Eastman implies that, unlike the children of today’s illegal immigrants, the children of aliens at the time the 14th Amendment was passed could be considered citizens because their parents did not owe allegiance to a foreign power. That might have been true of immigrants who had renounced their allegiance by becoming naturalized American citizens; the citizenship oath then and now requires the new citizen to “absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen.” But what about the children born on U.S. soil to the many immigrants who remained aliens?
Our romantic version of history envisions immigrants of previous generations eager to become U.S. citizens, but many—indeed among single women, most—did not bother to naturalize in the 19th century, since doing so conveyed few benefits beyond the franchise, which itself was available in some states to immigrant males who simply attested to their intention to naturalize. Under Eastman’s interpretation, presumably the children born to these persons would not be entitled to U.S. citizenship either, because their parents still owed allegiance to a foreign power. And if such children were not citizens by virtue of birth, must they then have naturalized in order to be considered so? (There is no historical evidence that they did.) And if they didn’t, what of their children, and their children’s children? Eastman’s interpretation taken to its logical conclusion would disqualify from birthright citizenship generations of people born on U.S. soil because their ancestors did not bother to naturalize and thus were presumed to be subject to the jurisdiction of a foreign government, as he claims illegal immigrants are—though on exactly what grounds he never makes clear.
What rights, exactly, do foreign governments have to exercise jurisdiction over individuals born to their countrymen while on U.S. soil? If Mexico were to pass a law requiring all Mexicans to serve in the Mexican military at 18, would it have the right to draft a person born in, say, California to Mexican parents who either entered the U.S. without inspection (the actual term that we loosely define as illegal entry) or who had not naturalized as American citizens at the time of birth? For that matter, would any country that extends citizenship on the basis of jus sanguinis, the law of blood, be able to claim jurisdiction over a child born even to naturalized American citizens if neither the child nor his parents claimed the rights of citizenship through jus sanguinis on his part? Eastman’s interpretation would seem to defer to any country that wished to assert it the right to claim jurisdiction over persons born on American soil if their parents were native to that country.
Eastman has taken his arguments to the Supreme Court, which chose to ignore them in Hamdi v. Rumsfeld in 2004. (Even Justice Scalia noted in his dissent that Yaser Hamdi, who was born in Louisiana to parents holding temporary visas and was later captured waging war against the United States in Afghanistan, was “a presumed American citizen.”) Eastman is free to do so again, though I think his chances of prevailing are slim to none.
In sum, if the Framers of the 14th Amendment had intended to end the way children of foreign-born parents had become citizens since the Founding, then they could have, should have, and would have done so much differently than by adding the innocuous six words “and subject to the jurisdiction thereof” to the Amendment. As Justice Scalia has noted, “Congress…does not, one might say, hide elephants in mouseholes.”
John Eastman: Linda Chavez is a friend of mine, and she has long been an advocate for what she calls “patriotic assimilation” of immigrants, which makes it possible for the United States to be a nation dedicated to common principles—the unum part of our national motto, E pluribus unum—despite our vast ethnic and religious differences. With those sentiments, I wholeheartedly agree.
But Chavez’s project is undermined by her support for treating the children of illegal immigrants as automatic citizens if they happen to be born on U.S. soil, for that “birthright citizenship” policy, together with lax enforcement (or complete non-enforcement) of our nation’s immigration laws and prohibitions on employment for illegal immigrants, ensures that the careful policy judgments made by Congress on how much immigration the nation can absorb in any given year with a reasonable possibility of assimilation will be ignored.
She is also wrong, factually and legally, about the meaning of the Citizenship Clause of the Fourteenth Amendment.
Right at the outset of her piece, for example, Chavez claims that “The 14th Amendment’s guarantee of birthright citizenship to persons born in the United States, regardless of parentage (with some extraordinary exceptions), has long been considered a matter of settled law.” That is simply not true. Indeed, most constitutional scholars have recognized that neither the Supreme Court nor any lower court has ever held that the children of illegal immigrants born on U.S. soil are automatically citizens by virtue of the 14th Amendment. If anything, the opposite is true. It was long considered a matter of settled law that, as the text of the 14th Amendment makes clear, two requirements are necessary for automatic citizenship: being born on U.S. soil, and being “subject to the jurisdiction” of the United States. The two requirements are not redundant. Being “subject to the jurisdiction” of the United States means something more than simply being physically present in the United States, which subjects one to what the drafters of the 14th Amendment called “partial” or “territorial” jurisdiction. It means, rather, being subject to the full and complete jurisdiction of the United States, owing allegiance to it in some measure. Think of it this way. Imagine a British citizen who visits the United States on a tourist visa. While here, he must comply with U.S. laws (or face the consequences). He must drive on the right side of the road rather than the left, for example. But he is not subject to our military draft, and he cannot be tried for treason if he takes up arms against us. He owes us no allegiance, but is subject only to the territorial jurisdiction of the U.S. while he remains present within our borders. The same distinction is also applicable to illegal immigrants, who subject themselves to our laws but do not thereby acquire an obligation of allegiance by entering into the territory of the United States.
Chavez recognizes this distinction, as she must, but accuses me of making “quite a leap” by asserting that the distinction applies as much to the children born of illegal immigrants as to the illegal immigrants themselves. And yet treating the children of immigrant visitors (whether legal or illegal) the same as their parents is a very common feature of international law. And it was the understanding of the Citizenship Clause held by those who drafted and ratified it, Chavez’s revisionist interpretation of those debates notwithstanding.
Chavez claims, for example, that Senator Jacob Howard thought the issue was straightforward, and that the “subject to the jurisdiction” clause created “a single exception,” namely, that the children of ambassadors would not be treated as automatic citizens. She says that, according to Howard, such was the rule already in place, and the Citizenship Clause language he proposed was “simply declaratory of what [he regarded] as the law of the land already.” But when Senator Howard spoke those words, the “law of the land” was the 1866 Civil Rights Act, which provided: “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.” A child born in the United States to foreign national parents was, through their parents, “subject to a foreign power” and not eligible for U.S. citizenship under the Act. That was the “law of the land” that Senator Howard claimed his amendment was “simply declaratory of.”
Chavez also takes issue with the fact that in a word-limited, non-footnoted op-ed I published online at National Review, I inserted the word “or” in brackets in Howard’s recorded litany of people to whom the grant of automatic citizenship would not reach: “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.” Chavez claims I “cleverly” inserted the word to change the meaning, noting that “no such ‘or’ is in the original!” Of course, I didn’t claim it was—that’s why I put it in brackets. But I did insert it because it accurately reflects the substance of the debate, and does so much more efficiently (as was appropriate for an op-ed) than a full scholarly treatment would require.
In Chavez’s view, on the other hand, the last part of Howard’s sentence is a “restrictive clause,” limiting the meaning of “foreigners, aliens” to only those who are diplomats. But that is the dispute, and Chavez errs by treating the notes of the congressional record as though it were a verbatim transcript, capturing both every word and every nuance that was spoken. It is not, of course, and Chavez is simply wrong with her further assertion that “Neither is [an ‘or’] intended, as the full debate makes clear.” The full debate, as well as subsequent definitive commentary and Supreme Court decisions, demonstrates just the opposite of what she claims.
Remember, Chavez stakes her position on the claim that the children of diplomats were the “single exception” to the automatic citizenship mandate. But when pressed during the debate about another “exception,” namely, whether Indians living on reservations would be covered by the clause since they were “most clearly subject to our jurisdiction, both civil and military,” Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction; “[n]ot owing allegiance to anybody else”—the very position I have advanced. Elsewhere he elaborated that “persons born in the United States and under its authority, owing allegiance to the United States, are citizens.” And Senator 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 in extent and quality as applies to every citizen of the United States now” (i.e., under the 1866 Act, which exempted both Indians and all those who were subject to a foreign power). That meant that the children of Indians who still “belong[ed] to a tribal relation” and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin to explicitly exclude “Indians not taxed,” as the 1866 Act had done, was rejected as redundant. The positively phrased “subject to the jurisdiction” language covered both exclusions in the 1866 Act—“not subject to any foreign power” and “excluding Indians not taxed.” The Indians were not diplomats, so the claim that Howard intended only a “single exception” for diplomats is patently false.
Chavez also misunderstands the exchange between the racist Senator Edgar Cowan of Pennsylvania, and Senator John Conness of California. Cowan asked, as Chavez rightly points out, whether the Citizenship Clause would provide automatic citizenship to the children of Chinese and Gypsy immigrants residing in California and Pennsylvania, respectively, expecting that his question would derail the amendment. But she overlooks a crucial piece of Conness’s response, for he began with a statement that he failed to see the relevance of Cowan’s question to the Citizenship Clause. Cowan, you see, was not asking a question about illegal immigrants or others who retained an allegiance to a foreign power; he was making a racist assertion that, effectively, only white Europeans should be allowed to be citizens. Conness rightly rejected that contention. Our citizenship rule was to apply to anyone who was lawfully and permanently in the United States, but his response does not in any way suggest—because Cowan’s question did not present the issue—that temporary sojourners, who still owed allegiance to a foreign power, could unilaterally bestow U.S. citizenship on their offspring. Indeed, the final part of Cowan’s question itself recognized the distinction I am drawing: ““Have [the children of Chinese or Gypsies] any more rights than a sojourner in the United States?” Conness’s answer was a definite “yes.” Both have “more rights than a sojourner in the United States.” Anyone completely subject to the jurisdiction of the United States, no matter what their ethnic background or nation of origin, is entitled to the benefits of the Citizenship Clause. Temporary visitors, on the other hand—sojourners who are here legally and certainly those who are here illegally—are not.
So the bracketed “or” I used in the National Review op-ed was simply shorthand that conveyed the substance of the entire debate. The children of aliens, and foreigners, and of diplomats, as well as of Indians, were not eligible for automatic citizenship because all of them owed allegiance to another sovereign.
I am not alone in reading the broader debate in this manner. When the Supreme Court first confronted the language, it reached the identical conclusion as I have. “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,” it wrote in The Slaughterhouse Cases, decided in 1872 (emphasis added). Granted, that language was dicta, but it was re-affirmed a decade later in Elk v. Wilkins, in which the Court held that “subject to the jurisdiction” meant 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.” And this view was shared by Thomas Cooley, the leading treatise writer of the day. “[S]ubject to the jurisdiction,” he wrote in The General Principles of Constitutional Law in America, “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.”
So text, legislative history, contemporaneous Supreme Court decisions, and the leading treatise of the day all demonstrate that the “subject to the jurisdiction” phrase means exactly what I have said it means—subject to the complete rather than merely territorial jurisdiction.
Now Chavez and other critics of this original understanding point to Wong Kim Ark, a case decided thirty years after the 14th Amendment was passed, in which the Supreme Court held that the child of lawful, permanent Chinese immigrants was, by virtue of his birth on U.S. soil, a citizen. They also note, correctly, that there is language in the opinion to suggest that birth on U.S. soil is alone sufficient for automatic citizenship, no matter what the circumstances. But any such language is dicta because the case did not involve a child of parents who were here only temporarily, much less illegally. Wong Kim Ark’s parents were lawful, permanent residents who were “domiciled” in the United States, to use the Court’s word. Application of that holding to temporary sojourners, much less to those who are only here illegally, is well beyond what the actual holding of the case was. The Supreme Court has never held otherwise.
Treating Wong Kim Ark has having “long-settled” the matter, as Chavez and others do, runs into other problems as well. For example, none of the various statutory offers of citizenship that Congress made to Native Americans in the 1920s would have been necessary if Wong Kim Ark had already settled the issue as a matter of constitutional right. The roughly 1.2 million children born during the 1920s to guest workers from Mexico and Central America who were “repatriated” along with their parents after work dried up in the wake of the Great Depression would have had claims to citizenship that simply were never made. The same is true of the Braceros program in the 1950s and early 1960s; when it ended, all of those guest workers, and the many children who had been born to them during the program, were returned home to their homelands, and no one has been able to identify for me a single instance of any of them claiming a right to stay in the United States on the ground they were “birthright citizens” under the language of the 14th Amendment.
Chavez also contends that “From the Founding, American practice incorporated the English Common Law of jus solis, which granted citizenship based on the child’s birthplace, not that of his parents or ancestors.” That, too, is patently false. The English Common Law of jus soli held that anyone born within the King’s dominions was forever the King’s subject. Our Declaration of Independence, which asserts in no uncertain terms the human right to renounce such perpetual allegiance, is perhaps the most eloquent renunciation in human history of the English Common Law of jus soli. The principles asserted in the Declaration further require that legitimate government must be grounded on consent. Yet the claim that Chavez and others assert is that the children of those who are in this country illegally, which is to say without our consent, can nevertheless unilaterally demand to be members of the body politic. That view throws the idea of consent out the window.
Chavez also accuses me of having already taken the issue to the Supreme Court, which chose to ignore my arguments. But the Supreme Court almost never takes up issues that were raised only in an amicus brief, as this one was, so the Court’s declining to address the issue in that case was no surprise. What was a surprise was that Justice Scalia, in his dissenting opinion, referred to Hamdi merely as a “presumed citizen.” That should be recognized as a nod toward the seriousness of the argument raised in our brief, because it was the only one that suggested Hamdi might not be a citizen after all.
Finally, Chavez claims that I would strip generations of immigrants of their citizenship. That is not true, either. Our government began to treat mere birth on U.S. soil as sufficient to establish citizenship sometime in the mid-1960s, as far as I have been able to determine. Thus, for the past fifty years, people have relied on the government’s mistaken view of the Citizenship Clause in ordering their lives. I have never proposed to pull the rug out from under those expectations. What I have proposed instead is that we apply the correct understanding going forward, so that the Congress—the entity to which the Constitution actually assigns the plenary power over naturalization—can set immigration policy, free from an erroneous constitutional constraint, at the level it believes to be most conducive to the assimilation goals that Chavez claims she supports. The principle of consent articulated in the Declaration of Independence requires no less.
Chavez: John Eastman and I read the historical record very differently, and in some instances, I believe, he not only misinterprets me but also the Senate debate on the 14th Amendment and Supreme Court decisions on birthright citizenship and the 14th Amendment. I do not consider the insertion of the word “or” in quoting Sen. Howard’s explanation of which aliens were excluded to be a trivial disagreement because it so colors his interpretation of which persons were left out of the right to citizenship by birth. Eastman defends his action by noting that he bracketed the word. It is perfectly permissible to insert into brackets a word that makes clearer the meaning of the person being quoted (as in replacing a pronoun with its antecedent); but it is not permissible to insert a word that totally changes the speaker’s meaning, as I think Eastman’s insertion does. He says he inserted the word “because it accurately reflects the substance of the debate.” I don’t believe it does. The extent of the Senate debate over which classes of persons were excluded runs under 20 pages in the Congressional Globe. Howard’s remark comes at the beginning of this exchange and is followed by four and a half pages of colloquy between proponents and opponents of the amendment over only two groups of foreigners, namely “Gypsies” and “Mongolians,” some of which I quoted in my original post. There is no mention of the children of the millions of aliens from the rest of Europe, or Mexico for that matter, living in the United States at the time, even though many of these aliens would have given birth when they were, in Eastman’s very restrictive definition of “subject to the jurisdiction” language, still owing allegiance to their nations of origin because they had not yet naturalized. Yet this question never arises—not once. With respect to the Chinese, Sen. Howard commented in response to Sen. Conness’s description of the anti-Chinese legislation passed by California that had been declared unconstitutional and void by the state supreme court, “A very just and constitutional decision, undoubtedly.”
Eastman dismisses my object further by asserting, “Chavez errs in treating the notes of the congressional record as though it were a verbatim transcript.” I don’t think the Congressional Globe, which printed the debate, was handed down from Mount Sinai, but, alas, it is all we have. I assume that congressional prerogatives, then as now, allowed senators to “revise and extend” their remarks for errors. Eastman would have us believe that Senator Howard didn’t notice the missing “or” that transformed the class of individuals he intended to be outside the scope of the 14th Amendment’s guarantee from, specifically, “foreigners, aliens, who belong to families to of ambassadors” to all foreigners and aliens generally.
Eastman then inexplicably accuses me of something nowhere to be found in my text: “Remember, Chavez stakes her position on the claim that the children of diplomats were the ‘single exception’ to the automatic citizenship mandate.” I make no such claim. My actual words, which Eastman takes out of context were: “Howard went on to name a single exception….” I state throughout the article, as I have each time I have written on the subject in the Wall Street Journal, New York Times, Commentary and elsewhere, that the drafters of the Amendment intended to continue to exclude Indians from birthright citizenship, as they had been since the Founding, even though not named specifically. In the 20 pages of discussion cited above, fully two-thirds involves debate over how best to ensure that Indians not gain citizenship through the amendment, a lamentable decision that was not rectified until 1924.
Now to Eastman’s legal precedents. He cites the Slaughterhouse Cases (1872), Elk v. Wilkins (1884), and Wong Kim Ark (1898). Of these only the last is germane. As Eastman concedes, the language in Slaughterhouse that he believes bolsters his case is dicta, not holding, but even if it were, Wong Kim Ark would have reversed it and no subsequent case has reversed Wong Kim Ark. As for Elk, it addresses only the status of Indians at the time. There is no question that the Founders intended to exclude Indians from citizenship, as did the drafters of the 14th Amendment. This exclusion, indeed the entire quasi-sovereign status accorded Indians is one of the great injustices in our history. It was partially reversed when Indians gained the rights of citizenship in 1924 by simple statute, which would not have been possible if those who argued for excluding them by name in the Amendment had succeeded. Indians on reservations today lack the property rights guaranteed all other citizens, are subject to the whims of tribal governments, and suffer from poverty at rates higher than any other group within our nation—a direct outgrowth of the patronizing fiction that they are members of sovereign nations.
But regardless of the ruling in Elk, which held that Indians could not even become naturalized citizens, it does not bear on the status of the children of foreign aliens. The single decision that does deal with this population is, of course, Wong Kim Ark. Here again, Eastman errs in his description of the facts of the case, which thus colors his interpretation of the holding.
Wong Kim Ark was born in San Francisco of Chinese parents who, at the time of his birth, had “a permanent domicile and residence in the United States and are there carrying on business,” as the court noted. They were not, as Eastman asserts, “lawful, permanent residents,” there being no such immigrant category in 1870 when they arrived. At the time of the plaintiff’s birth, his parents had been in the United States only three years, having come as laborers during a period similar to ours when foreign workers were both wanted for their economic contribution and despised by many who saw them as too different ever to become part of us. I might point out, Wong’s parents actually did owe allegiance to a foreign power under both the laws of China and the United States at the time, which strikes at the gravamen of Eastman’s theory that children born to aliens in the U.S. are not entitled to birthright citizenship because they are not subject to the full jurisdiction of the United States.
Shortly after the passage of the Chinese Exclusion Acts, Wong’s parents returned to China, where they resided the rest of their lives. If not sojourner laborers, albeit long-term ones, what exactly were they? They lived and worked here 20 years and then returned home. Wong actually accompanied them and stayed in China for some time, returning about a year later, to no controversy when he arrived by ship. It was only on his return from a second trip to his parents’ homeland that authorities prevented his re-entry, claiming he was not a citizen, making nearly the same legal arguments that Eastman puts forth now to exclude all children born to non-citizens. The Supreme Court rejected those arguments in its holding in Wong Kim Ark, which specifically references the first clause of the 14th Amendment containing the “subject to the jurisdiction thereof” language. But Eastman contends this has never been challenged as it applies to the children of temporary residents, either legal or illegal, and he points to the “repatriation” of thousands of American-born children of temporary workers during the 1920s, 30s, and ‘50s.
The story of these mass repatriations and deportations is not widely known. While the poor, often illiterate Mexicans who were “repatriated,” sometimes with their American-born children, may not have filed suits at the time to assert their rights, it was widely understood and even officially acknowledged contemporaneously that these removals violated the law. A special commission appointed by President Herbert Hoover and chaired by George W. Wickersham actually addressed the extralegal practices common in the deportation of aliens in that era. The fifth report of the commission, entitled Report of the Enforcement of the Deportation Laws of the United States and issued in 1931, noted that “the apprehension and examination of supposed aliens are often characterized by methods unconstitutional, tyrannic, and oppressive,” and went on to note that there is strong reason to believe that persons were deported “when further development of facts or proper construction of law” would have shown their right to remain.
Estimates of the number forcibly “repatriated” to Mexico and Central America during the Great Depression number into the many hundreds of thousands, including many who were legal immigrants and U.S. citizens. These were mostly not true deportations, nor were they carried out largely by the federal government (INS records show only 82,000 removals from 1925-1935 of the more than half million who were forced out). Rather they involved coercive tactics by state and local governments. At a time of great economic collapse and widespread anxiety, local and state officials, albeit sometimes aided by federal agents, rounded up people, mostly Mexicans and Mexican Americans, stuck them on trains and sent them “home,” with the Mexican government complicit in the process. As Professor George J. SaÌÂnchez concludes in his book Becoming Mexican American, Los Angeles Mexican consul “Rafael de la Colina jumped at the chance to help facilitate the repatriation of Mexican nationals and their often American-born children.”
Mexico, contrary to Donald Trump’s fantasies, has always had mixed reaction to the loss of so many of its highly-motivated emigrants. Mexico lost one third of its land to the United States in 1848 (an aside, my great-great grandfather’s brother, Manuel Armijo, was the last Mexican territorial governor of New Mexico and reviled in Mexico for giving up New Mexico without a fight), and it has lamented the loss of its people to El Norte, somewhat mitigated by the remittances that sustain many Mexican communities. Nonetheless, many of those repatriated in the 1930s and at later periods ultimately returned to the U.S., as did their American-born children, whose citizenship has never been challenged then or since. This issue continues to rile the Mexican American community; the California legislature passed bills granting victims the right to sue (even though the statute of limitations had long expired) and providing for reparations, which were then vetoed by both a Democrat and Republic governor on fiscal grounds, not because they contested that the victims were U.S. citizens.
Finally, Eastman asserts “our government began to treat mere birth on U.S. soil as sufficient to establish citizenship sometime in the mid-1960s”; but I know of no evidence supporting this assertion. Children born on U.S. soil to non-citizen parents, even illegal immigrants, have been allowed to vote, serve in our military, hold and be elected to public office, serve on juries, engage, in other words in the rights and duties of citizens going back at least into the mid-19th Century and doubtless before.
Why make so much of this, to go as far as to accuse a man I have always admired of misreading legal precedent and legislative history as well as my words? I suppose it stems from my great dread that conservatives are becoming so blinded—indeed, unhinged from principle—by their animus to illegal immigration that it distorts their reading of the Constitution. The 13th, 14th, and 15th Amendments fulfilled the promise of the Declaration of Independence, “that all men are created equal, that they are endowed by their Creator with certain unalienable rights….” To re-interpret the 14th Amendment so as to restrict citizenship flies in the face not only of the clear text but the history of the times. The framers of the 14th Amendment were radical Republicans who wanted to restore the guarantee of birthright citizenship that had been upended by Dred Scott, not place new restrictions on citizenship based on blood or ancestry. For our entire history as a nation, immigrants’ children, if not the immigrants themselves, have become fully incorporated into the fabric of our civic lives, enjoying the same rights and liberties, indeed becoming as fully American as those who trace their ancestry to the Mayflower. Abraham Lincoln—much beloved by the Claremont Institute—was a staunch advocate of immigrants against the Know Nothings of the time. While running for the U.S. Senate he gave a speech in July 1858 that chastised those who had turned Independence Day into a kind of ancestor worship of the Founders by those who considered themselves blood descendants of that generation:
We have—besides these, men descended by blood from our ancestors—among us perhaps half our people who are not descendants at all of these men; they are men who have come from Europe, German, Irish, French, and Scandinavian—men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that ‘We hold these truths to be self-evident, that all men are created equal,’ and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration and so they are.
Illegal immigration as a policy matter will be solved, as it must be. Border security has improved greatly; illegal migration in 2015 was down to barely one quarter of its apex in the late ‘90s; and if we ever pass changes to our legal immigration system that allow us to bring in needed low-skilled as well as high-skilled workers on a temporary or even permanent basis, we will further reduce the temptation to cross illegally into the country. Meanwhile, the idea confounds me that anyone can believe our nation would benefit by depriving the American-born children of the nearly 11 million illegal immigrants already here of their birthright. They were born here, educated here, serve and die in our armed forces, work and pay taxes here and consider themselves what they are: American citizens.
Eastman: Linda Chavez and I agree on at least one thing: We read the historical record very differently. And I suspect we agree on another as well: The debates over the 14th Amendment did not explicitly address whether the children of illegal immigrants would be automatically citizens because, at the time, there were not constraints on immigration and therefore no such thing as an “illegal immigrant.” Our task, then, is to ascertain from the debates that did occur whether there is a principle that helps us understand how the 14th Amendment applies in the admittedly different circumstance we have today. And it is with respect to that task that we draw dramatically different conclusions.
In my view, the principle to be derived from the debates is that the phrase, “subject to the jurisdiction,” requires more than just being subject to the partial or territorial jurisdiction, such as obtains when a foreign tourist is temporarily visiting the United States and is, while present within our borders, obligated to follow our laws. Rather, the debates reveal that complete, allegiance-owing jurisdiction is required. Chavez, on the other hand, believes that “subject to the jurisdiction” is much broader, that it encompasses everyone, except the children of diplomats (and Indians, though she never offers a rational that would exclude Indians but include illegal immigrants), who are “subject to the jurisdiction” of the United States even in a minimal way.
This disagreement plays out in Chavez’s claim that Senator Jacob Howard, the author of the 14th Amendment’s Citizenship Clause, “name[d] a single exception—diplomat’s children”—to the grant of automatic citizenship. (Emphasis added). Although Chavez claims that I have taken her words out of context, here is the context. The issue is whether the phrase, “subject to the jurisdiction,” means merely partial jurisdiction (subject to the laws while present in the United States) or complete jurisdiction (owing allegiance). Senator Howard stated during Senate debate “that every person born within the limits of the United States, and subject to its jurisdiction, is by virtue of natural law and national law a citizen of the United States,”—a passage accurately quoted by Chavez, but one which begs the question since the critical issue is what he meant by the phrase, “and subject to its jurisdiction.” Chavez then wrote: “Howard went on to name a single exception—diplomats’ children….” (emphasis added). Her point—and it is obvious to anyone reading the passage—is that the “subject to the jurisdiction” language extends to nearly everyone born in the United States because Howard only named a “single exception,” namely, the children of diplomats, to what Chavez claims is the otherwise all-inclusive language. Her position turns on interpreting Howard’s statement in that limited way, which is why I accurately stated that she “stakes her position on the claim.”
But as I pointed out, such a narrow interpretation is simply not consistent with the broader debate on the floor of the Senate. Howard, and his fellow principal supporter of the 14th Amendment Senator Lyman Trumbull, readily acknowledged in that debate that “Indians,” even though born within the territorial boundaries of the United States and subject more completely to her jurisdiction than some visiting foreigners, were not covered by the language, so “diplomats’ children” were clearly not the “single exception.” Neither were children born in the United States who were “subject to [a] foreign power”—a phrase much broader than merely the children of diplomats—automatically citizens because they were denied citizenship under the Act of 1866, which was the “law of the land” when Howard claimed his 14th Amendment language was “simply declaratory” of “the law of the land already.”
To be sure, Chavez elsewhere references the fact that Indians were not granted automatic citizenship either, but she nowhere explains how, in principle, children born to Indian parents—who were what she calls “members of sovereign nations”—were not covered by the “subject to the jurisdiction” language as that language was intended by Senator Howard, but children born to alien parents—who are just as clearly members of sovereign nations—are covered by the language. If anything, Indians were more subject to the complete jurisdiction of the United States, “both civil and military,” as one objecting Senator noted, than are visiting foreigners. So I repeat: Chavez stakes her position on reading Howard’s language as containing but a “single exception” for the children of diplomats, even while treating the entire discussion about Indians as an anomaly that sheds no light whatsoever on the meaning of the actual text of the Citizenship Clause. I do not think the discussion can be read in such a fashion.
Our disagreement also plays out, according to Chavez’s narrative, in the claim that I have “totally change[d] the…meaning” of a statement made by Senator Jacob Howard during floor debates by inserting an “or” into his statement. Let’s review the full record. After stating that his amendment (which became the Citizenship Clause) was “simply declaratory of what I regard as the law of the land already,” Senator Howard described that it would exclude “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons born in the United States.” Granted, this language is not the model of clarity. As Chavez concedes, it was not handed down from Mount Sinai; it is not necessarily a verbatim transcript but is rather a reporter’s depiction of the substance of Senator Howard’s remarks on the Senate floor. It could mean, as Chavez believes, that only the children of diplomats are excluded from the grant of automatic citizenship by this language, but the phrase, “who are foreigners, aliens,” becomes entirely superfluous in that reading. Moreover, such a reading also fails to account at all for the fact that, as Chavez herself acknowledges, Indians were also excluded from the grant of automatic citizenship.
The alternative reading, which is the one I have offered, treats each of Senator Howard’s words as having separate meaning, and also encompasses the fact that the clause clearly did not extend to Indians who still owed allegiance to their individual tribes. Automatic citizenship would not extend to “foreigners” (that is, foreign nationals visiting the United States), or “aliens” (that is, those who owed allegiance to a separate sovereign even if not a “foreign” sovereign—“Indians”), or “who belong to the families of” diplomats. Yes, in my reading, I find that the word “or” is implied even though it is not part of the recorded text (that’s why, in my blog post on the subject, I included the word only in brackets). But Chavez’s reading requires a much more significant alteration in the passage, both addition and deletion, as follows: excluded from the Amendment’s grant of automatic citizenship would be “Indians as well as all persons born in the United States
who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States….” So while I agree with Chavez that “it is not permissible to insert a word that totally changes the speaker’s meaning,” it is not only permissible but entirely appropriate to interpret a passage in a way that is consistent with the broader discussion in which the passage is found. Indeed, it is inappropriate to attribute meaning to a passage that ignores or directly contradicts the broader discussion.
Why am I confident that my interpretation is the stronger one? First, it is the only one that makes sense of the Indian discussion. Chavez’s pointing to the fact that there was a “far more extensive debate on Indians…than any that took place on the question of aliens’ offspring” is beside the point. There is no extensive discussion of the latter because there was not at the time an illegal alien problem; our task, as I noted above, is to derive from the discussion they did have what the principle was, and the Indian discussion instructs that the principle was that only those subject to the complete jurisdiction, not some lesser, partial jurisdiction, were afforded automatic citizenship by the 14th Amendment.
Second, my interpretation is the only one that is consistent with the language of the Civil Rights Act of 1866, language that nearly everyone agrees the 14th Amendment was intended to codify, not supplant. As was noted by Senator Lyman Trumbull—the leading sponsor of the 14th Amendment: “the object to be arrived at [by the Citizenship Clause] is the same” as existed under the 1866 Act. And Senator Johnson claimed that the Citizenship Clause meant that everyone “not subject to some foreign power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States.” In other words, both recognized that the Citizenship Clause accomplished exactly what the 1866 Civil Rights Act did, and no one disputed them on this point.
Third, my interpretation is the only one that is consistent with another colloquy held during the debate over the Citizenship Clause. Senator James Doolittle offered an amendment to Senator Howard’s language to add the phrase, “excluding Indians not taxed.” That amendment was rejected as redundant; Indians were already outside the grant of automatic citizenship because they were not “subject to the jurisdiction” of the United States in the way that language was understood. As Senator Trumbull stated, “subject to the jurisdiction” means “complete jurisdiction,” “not owing allegiance to anybody else.” The “subject to the jurisdiction” language of the 14th Amendment therefore covered in a single phrase what was covered by the two phrases in the 1866 Act—“not subject to any foreign power” and “excluding Indians not taxed.”
Fourth, my interpretation was shared by the Supreme Court itself, in the immediate aftermath of the 14th Amendment’s passage. In The Slaughterhouse Cases, decided in 1872, the Court wrote 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.” 83 U.S. (16. Wall.) 36, 73 (1872) (emphasis added). Although the different grammatical structure of the sentence leads the Court to use “and” rather than the “or” I used in explaining the meaning of Senator Howard’s statement, it is clear that the Court did not view Senator Howard’s language as limited only to the children of diplomats, but as rather extending to the children of all foreigners who still owed allegiance to their home country—exactly the interpretation I have offered. Chavez discounts this discussion because it was dicta—a point I readily acknowledged in my opening remarks. But the fact that the Court’s understanding of the Citizenship Clause was not part of the holding of that particular case does not alter the fact that the Supreme Court interpreted the 14th Amendment’s Citizenship Clause in exactly the way I have interpreted it, and did so from a vantage point much closer in time to the drafting and ratification debates than either Linda Chavez or I have.
Moreover, the Supreme Court’s dicta in The Slaughterhouse Cases became holding a decade later, in the case of Elk v. Wilkins. Chavez attempts to minimize the significance of this holding by noting that “it addresses only the status of Indians at the time,” and by claiming that “[i]t was partially reversed when Indians gained the rights of citizenship in 1924 by simple statute.” The latter claim is simply not true, and the former suffers from the same conceptual problem noted above. The exclusion of Indians from the Citizenship Clause’s operation is not an anomaly, but a particular application of a broader principle.
The holding in Elk v. Wilkins was that a child born on U.S. soil to members of an Indian tribe was not automatically a citizen by virtue of the 14th Amendment’s Citizenship Clause because he did not owe his allegiance to the United States, owing it instead to the separate sovereign entity of which his parents were members (just as the children of illegal immigrants do not owe allegiance to the United States, owing it instead to the separate sovereign nation of which their parents are citizens or subjects). That holding has never been reversed, partially or otherwise. Congress’s 1924 offer of citizenship to Native Americans was made pursuant to its naturalization power under Article I, not by some assertion of power to reverse the Supreme Court’s holding in the case.
Chavez further claims that had the “excluding Indians not taxed” clause been included in the 14th Amendment, Congress could not have extended citizenship to Native Americans by simple statute, as it did in 1924. But that, too, is incorrect. No one to my knowledge has ever claimed, and I have certainly never claimed, that the 14th Amendment sets a ceiling on who can be offered citizenship, or that it eliminated the power over naturalization given to Congress in Article I, Section 8 of the original Constitution. Congress remains free to offer citizenship to whole classes of people not granted automatic citizenship by the Citizenship Clause of the 14th Amendment. The fact that it made such an offer to Native Americans in 1924—a full quarter century after the Wong Kim Ark case supposedly settled the question that anyone born on U.S. soil was automatically a citizen—using its naturalization power rather than purporting to simply implement the 14th Amendment’s mandate, is pretty dispositive evidence that Congress did not interpret the Wong Kim Ark case in the way Chavez and others now do.
So let me turn to the Wong Kim Ark case, and Chavez’s claim that I “err[ed] in [my] description of the facts of the case, which thus color[ed] [my] interpretation of the holding.” She objects to the fact that I described the parents of Wong Kim Ark as “lawful, permanent residents,” claiming that “[t]hey were not” because there was “no such immigrant category in 1870 when they arrived.” But I nowhere make the anachronistic claim that Wong Kim Ark’s parents were members of the modern lawful, permanent resident immigration category (i.e., holders of green cards). Instead, I used the phrase as synonymous with the technical legal word that the Court actually used but whose meaning escapes many people today. Here’s what I wrote: “Wong Kim Ark’s parents were lawful, permanent residents who were “domiciled” in the United States, to use the Court’s word.” (Emphasis added). As Black’s Law Dictionary defines the word, “domicile” means “A person’s legal home. That place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning.” In other words, the word “domicile,” which is the word used by the Court in the Wong Kim Ark case, encompasses in its definition both “lawful” and “permanent” residence. Far from erring in my description of the facts of the case, I used the exact word the Court used, as well as a phrase that defines the word for those who are not familiar with its legal meaning.
Nor does the fact that Wong Kim Ark’s parents nominally remained “subjects” of the Emperor of China dispose of the issue, though it certainly complicates matters. Under the terms of the Burlingame Treaty of 1868 between China and the United States, Chinese subjects were allowed to immigrate to the United States “for purposes of curiosity, of trade, or as permanent residents.” (Emphasis added). The treaty even stated that both the United States and China “recognize[d] the inherent and inalienable right of man to change his home and his allegiance” (emphasis added), but it further provided that “nothing [in the treaty] may be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States.” So the treaty allowed Wong Kim Ark’s parents to immigrate to the United States, to take up permanent residence in the United States, and also to become “domiciled” in the United States, even though we refused to let them become naturalized citizens. By describing them as domiciles (as opposed to merely residents), the Supreme Court in Wong Kim Ark indicated a measure of allegiance to the United States that was incompatible with them still being nominal subjects of the Emperor of China. To return to Black’s dictionary definition, “[t]he legal domicile of a person is important since it, rather than the actual residence, often controls the jurisdiction of the taxing authorities and determines where a person may exercise the privilege of voting and other legal rights and privileges.”
That the U.S. diplomatic corps felt it necessary to bow to the Emperor’s demands that his subjects not be allowed to become naturalized U.S. citizens, even while asserting the contrary principle that one had an “inherent and inalienable right” to renounce the former allegiance, does not mean that the Supreme Court had to likewise accept that compromise. The simple fact is that, by becoming “domiciled” here with our permission, Wong Kim Ark’s parents had subjected themselves as much to the complete jurisdiction of the United States as was possible (and the fact that they switched their allegiance back again 20 years later, after the U.S. adopted the heinous Chinese exclusion acts, does not alter the fact that they were lawful, permanent residents—domiciliaries—at the time of Wong Kim Ark’s birth, not merely temporary sojourners). No wonder that the actual holding of the Wong Kim Ark case treated Wong Kim Ark as a citizen. But the specific circumstances of that case are a far cry from the claims now being made, that even those who are not “domiciled,” or even legally present, in the United States are also “subject to the jurisdiction” in the sense intended by the 14th Amendment, such that any children they manage to birth on U.S. soil are automatically citizens.
The passages Chavez cites from the Wickersham report are not to the contrary. The primary focus of the report of the Wickersham Commission itself was on the failure of immigration officials to provide due process to non-citizens before determining facts that required deportation. The “further development of facts” that would have demonstrated a right to remain referred, in the passage Chavez cites, to facts that would demonstrate the adult alien was actually legally present in the United States; it was not referring to the status of children at all.
There is another part of the appendix to the report that does support Chavez’s claim, however, and I thank Chavez for calling the report to my attention so that I could see the relevant language in the Appendix. The appendix is a study by Robert Oppenheimer that the Wickersham Commission had commissioned, and in Chapter 2 of that study, Oppenheimer at one point does assume that any child born in the United States is automatically a citizen. He states, at p. 129: “In some cases, the alien has entered the United States illegally and has had children born here who are, therefore, American citizens.” But in nearly all of the specific cases he mentioned, those children also had one parent who was already an American citizen at the time of their birth. See, e.g., p. 58 (criticizing the issuance of arrest warrants “where the violation of the law is only technical and where the alien is not otherwise found to have been an undesirable resident or where he has an American wife and children”); p. 130 (“in some of these cases, the husband was forced to leave an American wife or an alien woman was sent away from an American husband. In many of the cases American children were involved.”); p. 131 (“He was a foreign laborer, had married un American, and had eight children born in Texas.); p. 132 (“He had an American wife and two children, one of whom was born in this country.”); p. 149 (“Many have lived in this country for a long period, some have come over as children, others have married Americans and have had American children born to them.”). Even if Oppenheimer believed that birth on U.S. soil was alone sufficient, it is extremely significant that the Wickersham Commission itself did not adopt that part of Oppenheimer’s study. See p. 8 (adopting “the conclusions and recommendations which constitute Chapter IV of Mr. Oppenheimer’s report,” which make no reference to the status of U.S.-born children). The official report itself makes no reference whatsoever to the status of children born in the U.S. to parents who were in the country unlawfully. The official report of the Commission is therefore not one that “officially acknowledges” a constitutional right to automatic citizenship, as Chavez claims. Indeed, it actually provides a ringing defense of deportation:
“Deportation laws are, of course, necessary. No other penalty than deportation will protect the United States from being inundated by defective, diseased, delinquent, and incorrigible persons. No other penalty will adequately discourage border jumpers or stowaways or the industry of smuggling undesirable aliens at our borders. The United States has a policy with regard to the admission of aliens, and those who by fraud make illegal entries, or by subsequent conduct attempt to defeat that policy, should be deported.”
Chavez then challenges my assertion that “our government began to treat mere birth on U.S. soil as sufficient to establish citizenship sometime in the mid-1960s,” claiming that she knows of no evidence supporting this assertion. First, I did not make the categorical claim she attributes to me, for I ended the sentence with “as far as I have been able to determine.” For more than a decade now, I have been inviting debate opponents to identify for me just when the U.S. Government officially began treating mere birth on U.S. soil no matter the circumstances as sufficient for automatic citizenship. No one has been able to do so. It was not with the Wong Kim Ark decision in 1898, because the actual holding in that case was much more limited (and subsequent grants of citizenship by statute, such as the Indian Citizenship Act of 1924, would not have been necessary had it done so). It was not any subsequent Court decision, because as Seventh Circuit Judge Richard Posner correctly noted recently, the Supreme Court has never made such a holding. It is not any act of Congress, because even today, the statute implementing the Citizenship Clause simply uses the language of the Clause verbatim. The only “official” thing I have been able to find thus far is a change in the burden of proof necessary to obtain a passport. Federal law requires proof of U.S. citizenship and allegiance in order to obtain a U.S. passport. Prior to 1966, the federal form used to apply for a passport, for use by individuals who had been born on U.S. soil (a separate form existed for use by those born abroad), required not just proof of the place and date of the applicant’s birth (the born on U.S. soil part), but also extensive additional proof of the place of the father’s residence, his place of birth, the date of his emigration to the United States, and if naturalized, the date and place of his naturalization. See 22 C.F.R. § 33.23 (1938). None of that additional information would have been necessary if the birth on U.S. soil was alone sufficient to confer citizenship. Those additional requirements were inexplicably dropped from the form in 1967, such that now proof of birth on U.S. soil is all that is required to establish citizenship. 22 C.F.R. § 51.43 (1967). Mid-1960s, as I said—though I’d certainly be interested in seeing any official documentation to the contrary.
Finally, and most essentially, Chavez fails to appreciate that the self-evident truth in the Declaration of Independence “that all men are created equal” does not mean that every human being the world over has an equal right to demand admission into someone else’s political society. Indeed, the opening words of the Declaration recognize the ability of “one people to dissolve the political bands which have connected them with another,” (emphasis added), language that necessarily implies the ability of a people to define for themselves who shall be members of their political society. Whether or not others are admitted into that body politic requires mutual consent, not unilateral (and particularly not illegal) action by those who would join, and nothing in Abraham Lincoln’s eloquent Fourth of July oration in 1858, which dealt with legal, not illegal immigration, suggests otherwise. In other words, the right to emigrate—that is, the inalienable human right to depart from one country and renounce one’s former allegiances—is not the same thing as the right to immigrate into any place of your choosing, even without the consent of those already there. Chavez’s argument, carried to its logical conclusion, requires an open admission policy, not just an open exit policy, as a matter of human right. And it would effectively repeal the language of Article I giving Congress the power to set naturalization policy. There is not a hint of such a view in the debates over the 14th Amendment, and it is simply inconceivable that such an amendment would have passed had that been the purpose.
One last rejoinder for good measure. Even though I believe I am right that the 14th Amendment was originally understood as having a more limited meaning than has become commonplace today, I have never proposed removing citizenship from those who, in the past number of decades, have erroneously been treated as citizens simply because of their birth on U.S. soil. What I have proposed is that Congress clean up the past error by retroactively extending citizenship to all such individuals pursuant to its naturalization power, and clarify on a going forward basis the more limited reach of the 14th Amendment’s Citizenship Clause, thereby removing an important magnet to illegal immigration that has not only thwarted Congress’s considered policy judgments about sustainable levels of immigration, but also undermined the rule of law itself. If we are going to continue to be a sovereign people devoted to a rule of law rooted in the consent of the governed, we should demand no less.