With immigration being one of the hottest topics of the year, it is no surprise that President Trump made it an issue during the midterm elections. However, his latest push for immigration reform has taken a much different twist as he is considering the use of an executive order to define the 14th Amendment and strip away birthright citizenship. There are two separate controversies here, the use of executive orders and the meaning of the 14th Amendment. To help understand these issues, some historical information may be helpful.
I don’t want to spend much time on executive orders. I wrote an entire column on the subject back in June, which can be read on my Historically Speaking page. It is enough to say that, even though I try not to give opinion here, just historical information, there are no situations I can see that allow the president the legal ability to change or interpret the Amendment. Even if you completely agree with President Trump’s interpretation of the law, and some legal scholars do, it still needs to be handled correctly.
The other issue is the 14th Amendment and the issue of birthright citizenship. The debated part of the 14th Amendment states, “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.” It seems easy enough, but the problem is it is not. What is tripping everyone up is the clause, “and subject to the jurisdiction therof.” What does that mean? Well, it’s open to interpretation. The problem and the brilliance of the Constitution is that it is vague. It has to be. If the Constitution was packed full of specifics, it would have been scrapped years ago. True, a few things are specified: the president must be thirty-five to be elected, but it also says the president must be compensated, without giving a figure. So how much does the president make? Congress has determined that along the way.
When it comes to citizenship, the original Constitution is silent. The requirements of citizenship have been determined by the courts and Congress. In other words, citizenship requirements have changed many times. Some examples are the Alien and Sedition Acts, passed in 1789 during John Adam’s administration, which changed the length of time one must live in America from five years to fourteen years before applying for citizenship. In the 1857 Dred Scott case the courts basically said that slaves were not citizens. A few years later in 1868, we get the 14th Amendment, which changed the earlier legal precedent on citizenship. In other words, citizenship laws have been fluid. Even with the acceptance of the 14th Amendment, later cases were still required to understand exactly what the amendment meant. In 1898, in United States v. Wong Kim Ark, the courts said a child born to immigrant parents was a citizen. What I am trying to say is that whether or not you agree with the President on birthright citizenship, history shows us that the laws are subject to change.
Back to the difficult clause, “and subject to the jurisdiction therof.” Historically, this was always seen as addressing two main groups. The first were diplomats. If children of diplomats were born in America, they were not granted citizenship because they were subjects of a different jurisdiction (country). The second group were Native Americans for the same reasons. In 1868, Indians were subjects of sovereign tribes, not the United States, and so their children were not given citizenship by being born in America. Note that today diplomat’s children are still not granted citizenship, but Native American children are. Citizenship laws have changed.
Intent does not seem to matter as much as legal precedent, and intent is often difficult to ascertain, but it is worth noting the intent of the 14th Amendment. The 13th, 14th, and 15th amendments are considered the Civil War or Reconstruction amendments because they all came at the end of or right after the War. The intent of these amendments seems clear. The Republican–controlled congress was trying to protect the newly freed slave population and fix the lack of official citizenship requirements in the Constitution. The 13th Amendment outlawed slavery, the 14th defined citizenship, and the 15th protected the freedmen’s right to vote. The Congress wanted to make sure freedmen could not lose their rights because they were once slaves or because of their color. The mere fact that they were born in America meant they were citizens with all the rights that go with citizenship.
What is impossible to know is if those members of Congress ever intended that to apply to a baby of an illegal alien. An argument can be made that illegal aliens are not subject to the jurisdiction therof and so their offspring are not covered under the 14th Amendment. The other issue of intent is if the writers of the Amendment intended it for use to skirt immigration laws. They probably never foresaw thousands of people swarming across our southern border when they created this new rule.
What is important to take away is that our citizenship requirements and our immigration laws have changed many times during our history. It also seems believable that the Congress did not write the 14th Amendment with illegal immigration in mind. I am not calling for the birthright citizenship to end, but I do think it is worth examining, and history has shown that is the precedent. However, that conversation needs to happen in the halls of congress and not done by the stroke of a pen from the President.