When it comes to the law, this is one lesson liberals won’t like at all.
After President Donald Trump on Wednesday reopened the question of possibly “birthright citizenship” for the children of illegal aliens, his remarks were greeted by the left with shrieks about “racism,” and claims that even the idea violates the Constitution and the 14th Amendment.
But one of the country’s best known legal scholars had a considerably different view.
Jonathan Turley, a professor of constitutional law at George Washington University, penned a lengthy column published in The Hill on Thursday that explained the question is not nearly so clear-cut as most liberal commentators seem to think.
And the word “racist” doesn’t belong in the argument at all.
“One can be entirely on board with the outcome of the Civil War, not be a racist, and still oppose birthright citizenship,” he wrote.
The column was headlined, fittingly enough: “No, it is not racist to question birthright citizenship.”
In fact, Turley wrote, the history of 14th Amendment jurisprudence, and the wording of the amendment itself, can be seen to weigh in favor of Trump’s argument that the authors never intended it to confer American citizenship on literally any human baby born on American soil.
The relevant part of the amendment — the first sentence of the first section — 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.”
The key, Turley wrote, is the clause “and subject to the jurisdiction thereof.”
If that were not in the document, there would be little question the words were intended to cover all births and convey citizenship to any child who came into this world “in the United States.”
But the inclusion of “and subject to the jurisdiction thereof” changes the picture. And the words were included for a reason, Turley wrote.
“At the time it was written, the sponsors expressly stated its purpose as protecting freed slaves and not the offspring of foreign citizens,” he wrote. “Republican Senator Jacob Howard, who was a coauthor of the 14th Amendment, said that it was ‘simply declaratory’ of the Civil Rights Act to protect freed slaves. He assured senators, ‘This will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.’”
Another drafter of the amendment, Illinois Republican Sen. Lyman Trumbull, was even more explicit, according to Turley. Trumbull “stressed that the six words only included those ‘not owing allegiance to anyone else,’” Turley wrote.
That makes it pretty clear that the actual men who devised the 14th Amendment never intended it to open American citizenship to those whose parents were not themselves citizens or at least lawful residents of the country.
Meanwhile, where the Supreme Court has ruled on 14th Amendment questions, Turley wrote, the results have not been conclusive.
Some high court decisions from the 19th century leaned toward restricting the amendment’s application. But the 1898 case of U.S. v. Wong Kim Ark established that the court “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.”
That’s the ruling supporters of birthright citizenship roll out, the big guns of the argument. But as Turley pointed out, there’s a huge caveat: The parents in that case were legal residents of the United States.
For anyone to pretend then that the decision is a rock-solid precedent governing questions of illegal residents of the United States is to deny reality.
“So what does all of this mean?” Turley wrote. “It means that anyone who claims that this question is clear is being less than candid. There are strong arguments on both sides of this question.”
That’s far more than any commentator on MSNBC or CNN is likely to grant. And even many conservative legal scholars consider the question closed.
But as Turley pointed out the question of birthright citizenship is far from settled. If Trump goes through with his executive order overturning it, a Supreme Court fight is not only guaranteed, all sides should welcome it.
It would be a guaranteed lesson for the whole country in how a nation of laws really works.
And if nothing else, liberals could stop yelling “racist” at everyone who disagrees with them.
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