https://www.theguardian.com/commentisfr ... nstitutionTrump's attack on birthright citizenship betrays his ignorance – and his weakness
Corey Brettschneider, Sat 3 Nov 2018.
In an interview that will air in full on Sunday, Donald Trump reveals that he wants to end birthright citizenship through executive order. But he doesn’t have that power. An executive order cannot reverse the guarantee of citizenship to anyone born in the United States that is enshrined in the constitution. Trump’s proposal reveals that he does not understand our constitution, or the deeper values behind it.
After the civil war, Congress sought to grant full citizenship to African Americans, who had been denied it under the Dred Scott supreme court decision. Yet when it passed the 14th amendment in 1868, Congress went further. It wrote a rule making it clear that any person, regardless of ethnicity or national origin, had a right to citizenship upon being born in the US.
The relevant portion of the 14th amendment reads: “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.” The phrase about jurisdiction was meant to exclude the children of ambassadors and tribal Native Americans, who until 1924 were regarded as citizens of separate sovereign nations.
These words about birthright citizenship reflect the wider values of the 14th amendment, which also guarantees “equal protection of the laws” for all persons. Together with the constitution’s ban on royal titles in Article I, Section 9, the document stands for the idea that the US does not condone hereditary hierarchy – or any legal distinction based on birth or parentage, ideas associated with aristocratic societies. In the US, everyone starts on the same plane.The meaning of the birthright citizenship provision was soon tested. In 1898, at a time of hostility to immigrants, the supreme court was asked in United States v Wong Kim Ark, whether the amendment applied to the children of non-citizens.Wong Kim Ark was born to Chinese immigrant parents in San Francisco. But by the time of the case, Chinese people had been barred from entry into the US by the Chinese Exclusion Act. Was being born in America enough to make him a citizen? The court answered in language as plain as the amendment itself: “[C]itizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution.” No ambiguity. No constitutional obfuscation. Just a direct affirmation of an important constitutional guarantee.
Contrary to Trump’s assertion, the constitution’s text and values and supreme court decisions show he cannot unilaterally revoke birthright citizenship. Nor can Congress pass a law to do so. The idea is enshrined in the constitution and can only be changed with a formal amendment.
However, a small group of scholars suggest a radical and very different reading of the 14th amendment. In their view, the language of “subject to the jurisdiction thereof” means something different from the plain meaning of excluding ambassadors’ children. They claim only citizens and legal residents who have shown “allegiance” to the country are subject to the jurisdiction of the United States, and so only children of law-abiding citizens and legal residents are entitled to birthright citizenship. In their view, the children of undocumented immigrants are not entitled to citizenship.
This reading is at odds with the constitution and supreme court decisions. If only the children of loyal citizens and residents were entitled to birthright citizenship, it would have been explicitly enshrined in the text – or discussed extensively in the ratification debates. It was not. At the very least, it would have played a central role in the reasoning of Wong Kim Ark. It did not. The argument would also make the rights of children depend on the beliefs of the parents. That is an idea that the entire constitution rejects. Specifically, the 14th amendment focuses on the rights of children born in the US, not those of the parents who gave birth to them. In fact, the supreme court in Wong Kim Ark made it clear that every person born in the territory of the US is entitled to birthright citizenship. The justices wrote: “Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.”