Trump Is Right About Birthright Citizenship By John C. Eastman
https://tomklingenstein.com/trump-is-right-about-birthright-citizenship/
Shortly after President Trump issued his executive order addressing birthright citizenship, the U.S. Senator from Hawaii, Mazie Hirono, posted this on her X/twitter account: “The Fourteenth Amendment is clear as day—’All persons born or naturalized in the United States…are citizens of the United States and of the State wherein they reside.’” Fascinating that she elided over the key phrase, “and subject to the jurisdiction thereof.”
Unfortunately, my long-time friend, Professor John Yoo, recently published an article at The Civitas Institute that begins with a summary that repeats the same error. “The Fourteenth Amendment directly overruled Dred Scott by declaring that all persons born in the US were citizens.” (Emphasis added). Now I know that Professor Yoo himself does not believe that, as during our many debates on the subject of birthright citizenship, he has always acknowledged that the “subject to the jurisdiction” clause excludes the children of diplomats and occupying armies. But there it is, boldly stated in this article, without even the ellipses that Senator Hirono used in her X post.
My dispute with Professor Yoo centers on whether the “subject to the jurisdiction” clause omitted from his and Senator Hirono’s formulations exempts from the grant of automatic citizenship only the children of diplomats and occupying armies, as the old English common law of jus soli did, or whether it also exempts the children of temporary visitors (“sojourners” was the word in use at the time), such as those present in the U.S. as tourists or on temporary work or student visas, and the children of those who have entered this country illegally.
Truth be told, because immigration (and particularly illegal immigration) was not an issue in 1868 when the Fourteenth Amendment was adopted, there is no direct debate about whether children of temporary sojourners or illegal immigrants would be citizens. But there is extensive debate over the analogous question of whether the children of Native Americans would be citizens. Those debates make clear that they would not be, because they owed, through their parents, allegiance to their semi-sovereign tribes and not to the United States.
Children born to parents who, as merely temporary visitors (legal or illegal) to this country continue to owe allegiance to a foreign power — their home country — are by analogy even less entitled to automatic citizenship. Quite simply, they are not subject to the jurisdiction of the United States in the complete sense intended by the Fourteenth Amendment.
Professor Yoo’s contention to the contrary rests on a confusion about the meaning of the “subject to the jurisdiction” phrase. He takes it as meaning subject to our laws (what the drafters of the Fourteenth Amendment described as “partial” or “territorial” jurisdiction). Save for diplomats, everyone within the borders of the United States is subject to our laws while present here. He even contends that “If aliens did not fall within the jurisdiction of the United States while on our territory, they could violate federal law and claim that the government had no jurisdiction to arrest, try, and punish them.” What utter nonsense, which completely ignores the distinction between partial, territorial jurisdiction, and complete, allegiance-owing jurisdiction.
Professor Yoo makes several other errors in his analysis. He claims, for example, that the idea of birthright citizenship for all but the children of diplomats is “the settled understanding of the Constitution,” and that I and other Claremont Institute scholars seek to “overturn[] the constitutional practice of the nation for most of its history.” Exactly the opposite is true. The idea that everyone born on U.S. soil is automatically a citizen is far from settled; in fact, the historical authority is to the contrary.
Neither has it been the practice for most of our history; in fact, the Declaration of Independence expressly repudiates it. The English rule of jus soli, which Professor Yoo claims has been followed for most of our history, provided that everyone born on the King’s soil was the King’s subject and owed perpetual allegiance to him. The closing paragraph of the Declaration expressly repudiates that idea: “We, therefore, the Representatives of the united States of America … solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States [and] that they are Absolved from all Allegiance to the British Crown….”
What the Amendment’s Framers Meant
Professor Yoo further claims that there is “no evidence that the drafters of the Fourteenth Amendment sought to work any revolution in the definition of citizenship” away from jus soli. But there is evidence aplenty that they did not codify jus soli in the Fourteenth Amendment, just as it had been repudiated by the Declaration of Independence. For example, the drafters of the Amendment quite explicitly sought to codify the 1866 Civil Rights Act, which expressly provided “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.” (emphasis added). That is not the rule of jus soli.
Moreover, as the debates in Congress over the Fourteenth Amendment make clear, the “subject to the jurisdiction” language ultimately adopted conveyed the same idea: subject to the complete jurisdiction of the United States, not owing allegiance to any other power foreign or (as in the case of the Indian tribes) domestic.
When pressed about whether Indians living on reservations would be covered by the clause since they were “most clearly subject to our jurisdiction, both civil and military,” for example, 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; “not 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 in extent and quality as applies to every citizen of the United States now” (i.e., under the 1866 Act). 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.
Professor Yoo discounts these statements as “a few stray comments” in the congressional debates, but given their sources — the author of the citizenship clause and the leading proponent of the Amendment — they are quite definitive. He also discounts the ratification debates as too sparse to be of much use, but one thing from those debates is clear: everyone understood that the Amendment was designed to codify and constitutionalize the provisions of the 1866 Civil Rights Act.
Professor Yoo next relies on an exchange during the debates between Senator Edgar Cowan of Pennsylvania and Senator John Conness of California, but he completely ignores the context of that debate, which proves just the opposite of what he claims. Shortly after Senator Howard introduced the language that was to become the Citizenship Clause, Senator Cowan asked: “Is the child of the Chinese immigrant in California a citizen [under the language of the proposed amendment]? 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?” (Emphasis added). Senator Conness responded that the amendment would grant citizenship to the children of Chinese living in California and Gypsies living in Pennsylvania, but his response must be read in light of the distinction that Senator Cowan himself had made between the Chinese and Gypsies to whom he was referring and “sojourners.”
In other words, by asking whether children of the Chinese and Gypsies were to be given “more rights than a sojourner,” Senator Cowan was necessarily referring to Chinese and Gypsies who were not mere sojourners (temporary visitors), but who were instead permanently domiciled in the United States and not owing allegiance to any foreign power. Far from establishing that the Citizenship Clause guarantees citizenship to everyone born on U.S. soil no matter the circumstances of their parents, as Professor Yoo claims, this important colloquy demonstrates just the opposite. Citizenship would not be limited to white Europeans, as prior naturalization acts had done, but neither would it be extended to the children born on U.S. soil to parents who were merely temporary visitors — sojourners — to the United States.
Birthright Citizenship in the Courts
Professor Yoo next boldly proclaims that “Courts have never sought to overturn this [jus soli] understanding of the Fourteenth Amendment based on originalist approaches to interpretation.” That is also not true.
In the very first case addressing the meaning of the Fourteenth Amendment taken up by the Supreme Court, the Slaughterhouse Cases of 1872, the Court wrote: “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.” (Emphasis added).
This was followed a dozen years later with Elk v. Wilkins, in which the Supreme Court held that the “subject to the jurisdiction” phrase limited the amendment’s provisions to those who were “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.” John Elk, the Native American claimant in the case, did not meet that requirement because, as a member of an Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States.
Even the 1898 case of United States v. Wong Kim Ark, which Professor Yoo and others tout as having settled the question, did not hold that everyone born on U.S. soil was automatically a citizen. The case involved a child who was born to Chinese immigrants who were permanently domiciled in the United States, not present here only temporarily and certainly not present here illegally. Professor Yoo claims that “the legal status of Ark’s parents made no difference in the decision,” but that is simply not true. The question presented in the case was “whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States … [and are not diplomats], becomes at the time of his birth a citizen of the United States.” (Emphasis added).
The critical language is “permanent domicile,” and it is repeated 24 times throughout the majority opinion. The actual holding of Wong Kim Ark is therefore limited to those who are permanently domiciled in the United States. The broader reading now advanced by Professor Yoo is based on non-binding dicta, just as the later footnote in the more recent case of Plyler v. Doe is also dicta, as even Yoo acknowledges. But to extend a holding about the children of “permanently domiciled” parents to cover children of temporary visitors or even those who were never lawfully present in the United States is quite a stretch. As I noted in a recent article, honest scholars have long recognized just such a limitation on the actual holding of the Wong Kim Ark decision.
Unfortunately, and quite uncharacteristically, Professor Yoo falsely claims that I instead suggested “that ‘honest’ scholars cannot defend the traditional American rule.” The “honest scholars” discussion in my article was about the actual holding in Wong Kim Ark, not the broader dispute about whether the Fourteenth Amendment codifies the jus soli rule or, instead, the consent-based understanding of citizenship reflected in the Declaration of Independence. The article, published at The American Mind, is available here, so readers can review that passage and its context for themselves.
History Disproves Yoo’s Argument
Professor Yoo closes his article with this whopper: “The Fourteenth Amendment recognized the traditional American norm of birthright citizenship. No Supreme Court, Congress, or President has acted to the contrary.”
As noted above, the Supreme Court recognized just the opposite in Slaughterhouse and Elk, and has never held that the children of temporary visitors or illegal immigrants are citizens. Congress has never recognized that, either. In fact, a quarter century after Wong Kim Ark, it extended an offer of citizenship to Native Americans in the Indian Citizenship Act of 1924, a statute that would not have been necessary had Wong Kim Ark settled the question that anyone born on U.S. soil, no matter the circumstances, was a citizen.
As for the president, Professor Yoo does not identify any action by anyone in the executive branch that has, in any formal way, codified the doctrine of jus soli. The historical record is just the opposite. The executive branch of the federal government recognized — both before and for two-thirds of a century after the decision in Wong Kim Ark — that more than mere birth on U.S. soil was required for the grant of automatic citizenship.
With the exception of wartime, when passports could be issued to non-citizen members of the military who took an oath of allegiance, only American citizens have been eligible for passports since 1856, so proof of citizenship has been required when applying for a passport. But shortly after the Court’s decision in Elk v. Wilkins, the passport office adopted a form for use by any “native citizen” applying for a passport that required the following information: 1) city, state, and date of birth in the United States; 2) whether the father was a native or naturalized citizen; 3) confirmation that the individual was domiciled in the United States, including the city and state of permanent residence; and 4) an oath of allegiance to the United States. Information about the father’s status continued until it was inexplicably dropped as a requirement in 1967. If birth on United States soil alone was sufficient for citizenship, the information about the father’s citizenship status would not have been necessary.
Similarly, as Chief Justice Fuller noted in his Wong Kim Ark dissenting opinion, Secretary of State Frederick Frelinghuysen rendered an opinion in 1885 that a child born on U.S. soil to Saxon parents who were “temporarily in the United States” was not a citizen because, through his parents, he was subject to a foreign power. Moreover, Frelinghuysen’s successor as Secretary of State, Thomas Bayard, rendered the same opinion in Richard Greisser’s case. Greisser was born in Ohio in 1867 to a father who was a German subject and domiciled in Germany. Greisser was therefore not a citizen, according to Secretary of State Bayard, because he was “‘subject to a foreign power,’ and ‘not subject to the jurisdiction of the United States.’”
In sum, the distinction between sojourners and those permanently domiciled in the United States was made during the debates over the Fourteenth Amendment, in judicial opinions, and by the actual practice of the passport office. These distinctions indicate that the mandate of automatic citizenship was not understood to apply to children of temporary visitors to the United States, much less to the children of those who were never present lawfully in the United States. In both cases, the parents are subject only to the partial, territorial jurisdiction of the United States in the sense that they must comport with the laws while physically present within the borders of the United States. But they are not subject to the jurisdiction of the United States in the broader sense intended by the Fourteenth Amendment because they are not subject to the complete, political jurisdiction. For their temporary sojourn to the territory of the United States brings with it only a temporary obligation to obey her laws, not a full allegiance to her sovereignty.
President Trump’s executive order merely reiterates this original understanding of the Citizenship Clause of the Fourteenth Amendment, one which is fully compatible with the consent-based understanding of citizenship that is reflected in the Declaration of Independence. While the lower courts may well ignore that original understanding, as we have already begun to see, and follow instead the erroneous understanding that has creeped into our national psyche over the past half century or so, one hopes that the staunchly originalist justices at the Supreme Court will take to heart these original source materials and the principle of consent that they reflect, and uphold President Trump’s executive order.
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