So, birthright citizenship has been very much in the news as of late, with President Donald Trump saying he’s planning to end birthright citizenship — the policy of conferring American citizenship on anyone born on American soil no matter what the legal status of their parents — by executive order.
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,” Donald Trump told Axios in an interview late last month, announcing he planned to end the policy.
“It’s ridiculous. It’s ridiculous. And it has to end.”
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” he added.
Some scholars would disagree, although we’ll get to that in a minute. College students generally aren’t constitutional scholars. They’ve also got notoriously hilarious opinions on all things Donald Trump — something that would be even funnier if it didn’t make your blood boil.
I’m not sure whether these individuals knew about as much about The Daily Caller as they do about birthright citizenship or the interviewer simply didn’t announce where she was from. I’d say the former, given the fact these are people not given to reading anything that doesn’t involve whatever text is on the screen of “Last Week Tonight with John Oliver.”
However, the whole thing might be best summed up by the very first millennial when she was asked whether she supported Trump’s proposed repeal of birthright citizenship: “I’m not a Trump supporter and do not support a lot of his policies.”
Note the pause before she says that and the thinly concealed rictus of bewilderment. I could give 50-to-1 odds that she couldn’t explain birthright citizenship and even if we could go back in time and try to get her to explain it without looking it up on her phone, I guarantee you I couldn’t get any takers.
Quite simply, nobody really understands the issue. Less-educated millennials probably think “Trump is bad, Trump dislikes birthright citizenship, birthright citizenship is good.” Those who have read anything about the issue (probably the HuffPo) assume that the 14th Amendment automatically confers birthright citizenship.
Except they’re wrong.
As law professor John C. Eastman pointed out during a 2016 online debate, “most constitutional scholars have recognized that neither the Supreme Court nor any lower court has ever held that the children of illegal immigrants born on U.S. soil are automatically citizens by virtue of the 14th Amendment. If anything, the opposite is true.
“It was long considered a matter of settled law that, as the text of the 14th Amendment makes clear, two requirements are necessary for automatic citizenship: being born on U.S. soil, and being ‘subject to the jurisdiction’ of the United States,” he wrote. “The two requirements are not redundant. Being ‘subject to the jurisdiction’ of the United States means something more than simply being physically present in the United States, which subjects one to what the drafters of the 14th Amendment called ‘partial’ or ‘territorial’ jurisdiction. It means, rather, being subject to the full and complete jurisdiction of the United States, owing allegiance to it in some measure.”
That also includes one of the major pieces of case law when it comes to birthright citizenship, United States v. Wong Kim Ark. In the 1898 case, the Supreme Court concluded that Kim’s child could not be denied citizenship because they were born in the United States — but only because both parents were legal residents.
As the Washington Examiner points out, the court “noted that persons not permitted in the country were outside of the ‘allegiance and protection’ of the U.S., and thus not subject to its jurisdiction.”
In fact, Eastman notes that “(p)rior to 1966, the federal form used to apply for a passport, for use by individuals who had been born on U.S. soil … required not just proof of the place and date of the applicant’s birth (the born on U.S. soil part), but also extensive additional proof of the place of the father’s residence, his place of birth, the date of his emigration to the United States, and if naturalized, the date and place of his naturalization.
“None of that additional information would have been necessary if the birth on U.S. soil was alone sufficient to confer citizenship. Those additional requirements were inexplicably dropped from the form in 1967, such that now proof of birth on U.S. soil is all that is required to establish citizenship.”
Thus, the “subject to the jurisdiction” clause is pretty important, no matter what millennials think. Whether years of convention (even if that convention isn’t constitutional) can be overturned with an executive order is a matter of opinion, but the fact that the next generation knows so little about the policy isn’t a good augury for any of us.
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