Part 2

Birthright Citizenship: Believe Your Own Eyes

Garrett Epps

In the classic comedy film Duck Soup, Chico Marx attempts to impersonate the president of Fredonia, played by his brother Groucho. When his imposture is detected, he quickly asks, “Who you gonna believe, me or your own eyes?”

In twenty-first century America, some are seeking to strip American citizenship from millions of American-born children. In effect, they ask us, “Who you gonna believe—us or the Constitution?”

Advocates of citizenship stripping offer a novel constitutional argument that the Fourteenth Amendment’s Citizenship Clause does not cover American-born children of undocumented aliens. This contention is wrong as a matter of constitutional text, wrong as a matter of history, and wrong as a matter of constitutional values.

The Fourteenth Amendment is the key to American democracy. We tamper with it at our peril. And tampering—rewriting the amendment to suit a present political desire—is what Professor Edward Erler proposes.

Subject to the Jurisdiction Thereof

Let’s begin with the text: “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 first sentence of the Amendment in many ways is the keystone of the entire amendment. It makes clear that, as Justice John Marshall Harlan wrote decades later, “There is no caste here.” Regardless of the sins of parents, no American child is born a slave or a serf.

This text is clear, and for years no one questioned that the clause covers American-born children of immigrants, no matter what the parents’ immigration status. These children are governed by U.S. law. Their rights and property are subject to adjudication in our courts; under proper circumstances, they are, like any other American child, liable to arrest, imprisonment, and other restraint by our law-enforcement officials. If their parents abuse or neglect them, American child-welfare authorities may take them away from their parents and place them in foster homes. They are most assuredly subject to U.S. jurisdiction.

But not so fast—that’s just your own eyes. Erler says that the text can’t mean what it says. “If it is argued that everyone born in the United States is automatically subject to the jurisdiction of the United States, then the jurisdiction clause is rendered superfluous,” he writes. “But, of course, no interpretation of a written Constitution can render any of its provisions without force or effect—this would be tantamount to an amendment of the Constitution by mere interpretation.”

This abstract argument might have some merit if anyone had ever argued that the clause has no exceptions. But no one ever has, because both the language and the debates at the amendment’s framing make clear that there currently is one excepted class: children of foreign diplomats covered in the United States by diplomatic immunity.

Why are they an exception? These children, like their parents, are not subject to either private suit or criminal trial in American courts. That’s part of diplomatic immunity. If diplomats or their families commit crimes or incur lawsuits, the American government must ask their home governments to pay the claims. The most this country can do to the diplomatic personnel themselves is ask for their immediate recall. They have a kind of extraterritorial status—they are not, in other words, “subject to the jurisdiction” of the United States.

So now we have a clear, useful meaning of the phrase “subject to the jurisdiction.” Erler contests this commonsense meaning. He notes correctly that at the time the clause was drafted, it was also understood to apply to another class of those born within the United States: Native Americans whose parents remained subject to their tribal governments. (Congress extended citizenship to tribal Indians by statute in 1924.) “It is impossible to believe,” he writes, “that the framers of the Fourteenth Amendment intended to confer the boon of citizenship on the children of illegal aliens when they explicitly denied that boon to Native persons.”

Erler’s mistake here arises because he seems unaware (as many people are today) that, before assimilation became government policy in 1887, Indian tribes were treated as sovereign governments. In 1866, when the Fourteenth Amendment was drafted, tribal Indians were covered by a kind of extraterritoriality very much like that afforded to diplomats today. If tribal Indians stole the horses or property of non-Indians, the owners could not sue them in court. They had to apply to the United States, which would demand payment from the tribal government. And federal criminal penalties in Indian country did not apply to crimes committed by Indians against each other. Tribal Indians were not “subject to the jurisdiction” of the United States.

Do American-born children of undocumented aliens have anything like that extraterritoriality today? Believe your own eyes.

The Wong Kim Ark Case

That brings us to the history. The Citizenship Clause was introduced in the Senate by Senator Ben Wade of Ohio. (One of the many inaccuracies in Erler’s account is his attribution of authorship of the clause to Senator Jacob Howard. Howard was the floor sponsor of the original draft amendment, which included no citizenship language; the citizenship provision was first introduced on the floor by Wade and later rewritten in a closed Republican caucus. Erler is confused because Howard was the Senate sponsor, not the author, of the entire draft amendment.) Wade explained, “I have always believed that every person, of whatever race or color, who was born within the United States was a citizen of the United States; but by the decisions of the courts there has been a doubt thrown over that subject.” (Wade was referring to the infamous Dred Scott decision of 1857, in which the Supreme Court held that persons of African descent could never be citizens of the United States.)

The resulting debate flatly, explicitly negates Erler’s surprising claim that “the framers of the Fourteenth Amendment would not have considered” Wong Kim Ark ineligible for citizenship because his “parents were, by treaty and statute, ineligible for American citizenship and they retained their allegiance to the emperor of China.” It’s a surprising claim, because the framers of the clause did regard the clause as extending birthright citizenship to the American-born children of Chinese immigrants. This isn’t my inference; they said so in so many words. When opponents of the amendment asked about children of Chinese immigrants, Republican Senator John Conness of California was unequivocal: “Children begotten of Chinese parents in California” would be citizens, he said. “The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.”

Which Century Are We Discussing?

The record of the debates thus contradicts Erler’s argument. Perhaps for this reason, he rather quickly moves to other sources. Beginning even before American independence, he notes, the Founders of the Republic rejected “birthright allegiance.” He argues, “It is utterly impossible to maintain that the Founders of the American regime were adopting the principle of birthright allegiance at the same time that they were dissolving their perpetual allegiance to the King of England.”

But no one doubts that the Constitution of 1787 did not contain a principle of birthright citizenship. We are not construing that Constitution; the Fourteenth Amendment is an amendment, a change, to that Constitution. It was framed nearly a century later, in part because the nation’s leaders came to believe that the original Constitution’s silence on citizenship was a terrible flaw. It did not incorporate a common-law concept of “subjectship”; it was based on advanced nineteenth, not eighteenth, century thought. Thus most of the sources Erler cites—Blackstone, Jefferson, James Wilson, and the Declaration of Independence—have no bearing on the question of what the Fourteenth Amendment means. Erler’s failure to grapple with the appropriate sources is a glaring hole in his argument.

Whatever was thought when Jefferson wrote in 1774, by the time of the framing of the clause, the principle of birthright citizenship had been accepted by virtually all anti-slavery thinkers and politicians. Indeed, birthright citizenship was the official legal policy of the American government. In a formal opinion in 1862, Attorney General Edward Bates wrote that “every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the ‘natural born’ right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.” Bates himself saw only one (familiar) exception to the rule: “the small and admitted class of the natural born composed of the children of foreign ministers and the like.”[1]

Erler argues that his reading of the clause is supported by the 1868 debate over the Expatriation Act. It is a remarkable claim. His discussion of the Expatriation Act calls to mind another dialogue from Duck Soup in which Chico asks Groucho what has a trunk and lives in a zoo. “That’s irrelevant,” Groucho replies. The Expatriation Act is not, as Erler imagines, “a necessary companion piece to the citizenship clause.” In fact, there is no relationship at all between the two. The act was written in a different year, by different authors, on a different subject, and in a different Congress, than the Fourteenth Amendment.

In 1867—a year after the Fourteenth Amendment was framed—President Andrew Johnson noted that Britain was threatening to try naturalized American citizens of Irish birth for treason after a failed rebellion against the Crown. American citizens could not commit treason against Britain. But the British refused to recognize their renunciation of British nationality. Congress in the Expatriation Act affirmed the right of every foreign immigrant to move to the United States, naturalize as a citizen here, and give up his or her old citizenship. It is not clear, however, that the act had any applicability to native-born American citizens who wished to renounce their citizenship. After its passage, in fact, Secretary of State George Bancroft felt obliged to negotiate treaties with a number of countries that allowed Americans who moved to those countries to give up their citizenship.

I will cheerfully concede that American-born children of aliens have the right to renounce their American citizenship if they choose, because they are citizens by birth. That concession, however, bears no relation to the question of whether the American government can strip away their constitutionally guaranteed citizenship without their consent because it disapproves of something their parents did. The U.S. Constitution says it cannot.

Erler’s Many Mistakes

So nothing in the text or the framing debate supports Erler’s interpretation of the Citizenship Clause. Now consider the overall situation the framers of the amendment were reacting to. Slavery was a hereditary, lifelong subordinate status—what most anti-slavery thinkers referred to as a system of “caste.” The framers had set out to eradicate this kind of legal inequality. And the situation of foreign-born Americans was very much on their minds; how could it not have been? The percentage of foreign-born in the American population of 1866 was higher than it is today. Debate over immigration had split the nation during the 1850s; immigrants formed a crucial element of the Republican party coalition. Indeed, some of the very lawmakers who framed and passed the Fourteenth Amendment, such as California’s Conness, were immigrants themselves.

Would these men, committed to eradicating inequality, have silently written into their draft a provision allowing Congress or the states to strip a huge class of Americans of the “privileges or immunities” of citizenship? It is that interpretation that is literally “inconceivable.”

Much of Erler’s “evidence” is not evidence at all; none of it is enough to overcome Wong Kim Ark’s straightforward application of the text.

That text had a clear meaning in 1866; the framers explained that meaning; that meaning had a rich background in nineteenth-century legal thought; that meaning accords with the structure and history of the Fourteenth Amendment. “All persons” means all our children.

We can believe our own eyes.

NEXT: Edward Erler responds to Garrett Epps.