Trump and Birthright Citizenship

I once supported Ted Cruz over Donald Trump in the primaries, largely due to the fact that Trump seemed a bull who carried around his own china shop and campaigned like Sherman marching through Atlanta with matches.  But he won me over, and I repented my political sins and saw the method in his madness as he overturned the tables at which the elitist moneychangers sat along with the status quo they cherished.

He has unleashed America's entrepreneurs, cut all our taxes, chopped off the strangling regulatory tentacles of big government, liberated American energy, rebuilt the military, ended "free" trade transfers of wealth to those who are not all our friends, fundamentally transformed the judiciary, and dared to step on the new third rail of American politics: illegal immigration and sanctuary cities.

Sadly, some persist in their unbelief, most notably the #NeverTrumps over at the increasingly irrelevant National Review, who have published a piece taking the absurd position that the concept of birthright citizenship is not only constitutional, but an integral part of any originalist interpretation of the U.S. Constitution:

The conservative beltway publication National Review published a piece in which their legal columnist argues that "constitutional originalism requires" that United States citizenship be given to the children of illegal aliens.

Dan McLaughlin of National Review – which infamously launched a campaign against President Trump during the 2016 presidential election – published the piece, titled "Constitutional Originalism Requires Birthright Citizenship," which claims that the U.S. Constitution does provide birthright citizenship for the children of illegal aliens[.] ...

Dan McLaughlin writes for National Review:

Among the ideas that percolate now and then on the Right is the idea of reforming or eliminating birthright citizenship, the policy by which anyone born on American soil automatically becomes a natural-born citizen.  From a policy perspective, there is fair grounds [sic] for debate: there are reasonable objections to the abuse of birthright citizenship, but also serious problems of principle and practice with changing it.  But from a legal perspective, the answer should be clear: a proper originalist interpretation of the U.S. Constitution, as presently written, guarantees American citizenship to those born within our borders, with only a few limited exceptions. [Emphasis added by Breitbart] ...

The Supreme Court, however, has never explicitly ruled that the children of illegal aliens must be granted automatic citizenship and many legal scholars dispute the idea.

The Supreme Court has indeed not said birthright citizenship is constitutional, and legal scholars have noted that supporters of birthright citizenship, a gross misinterpretation of the 14th Amendment, ignore the intentions of those who wrote that amendment.  So much for an originalist interpretation.

Peter H. Schuck, Yale University's Simeon E. Baldwin professor of law emeritus and self-described "militant moderate," reiterated his opinion Monday that birthright citizenship is not required by the U.S. Constitution.  Though opposed to many of the president's positions, he was surprised the administration has not made opposition to citizenship for the children of illegal aliens more central to its immigration policy.

On at least one key immigration stance, however, Schuck appears to be in agreement with President Trump.  In the 1990s, along with Yale Political Scientist Rogers Smith, he determined, in a book called Citizenship Without Consent, that the policy of granting citizenship to everyone born on American soil, including so-called "anchor-babies" – those born to illegal alliens [sic] – was not mandated by the Fourteenth Amendment to the U.S. Constitution as is popularly trumpeted by open-borders supporters.  Trump came to the same conclusion on the campaign trail, once stating, "We're the only ones dumb enough, stupid enough to have it."

This misinterpretation of the 14th Amendment, written to guarantee the citizenship rights of freed slaves after the Civil War, has morphed the amendment into a guarantee of birthright citizenship.  Merely being born on American soil is said to make you a U.S. citizen.  Sneak past the U.S. Border Patrol; have your baby; and you not only have a U.S. citizen, but what is called an "anchor baby," allowing you to stay and bring others in under the banner of family reunification.

During the campaign, Trump correctly called the flawed concept of birthright citizenship the "biggest magnet" for illegal immigration.  He would end it, and as for family reunification, Trump is all for it, just saying it should happen on the other side of the U.S.-Mexico border.  As the New York Post reported:

Trump described his expanded vision of how to secure American borders during a wide-ranging interview Sunday on NBC's "Meet The Press," and in a position paper he later released, saying that he would push to end the constitutionally protected citizenship rights of children of any family living illegally inside the US.

"They have to go," Trump said.  "What they're doing, they're having a baby.  And then all of a sudden, nobody knows... the baby's here."

Birthright citizenship is the exception and not the rule worldwide.  Even our European brethren, as fond as they are of refugees and open borders, do not embrace it.  As Liz Peek writes on, birthright citizenship is indeed a big magnet for illegal immigration:

The United States is one of only two developed countries in the world that still bestows citizenship on every person born on our nation's soil.  Having a child become a U.S. citizen is the greatest reward possible for someone who enters the country illegally.  Such status is worth hundreds of thousands of dollars in free education and benefits, not to mention the incalculable value of our country's security and freedoms.  Historically, there was bipartisan enthusiasm for dumping this program; even Democrat Harry Reid had proposed its termination.

The costs of birthright citizenship are staggering, especially when you consider the costs of what is called "chain migration."  Once of age, the baby born here can sponsor others.  It has even given rise to what is called "birth tourism," where pregnant women are brought to the United States, ostensibly as tourists, to give birth here and have their children deemed American citizens by birth. 

Trump said he would end birthright citizenship.  Critics have said the task, even if justified, is well nigh impossible, requiring amending the U.S. Constitution.  In reality, it may not require altering the 14th Amendment – only correctly interpreting it, perhaps through clarifying legislation.

The Fourteenth Amendment, passed on July 3, 1866, 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."  This was done, again, to guarantee the citizenship rights of freed slaves, not illegal aliens.  The 1857 Dred Scott decision held that no black, not even a freed black, could be considered a citizen.

In testimony before the House Judiciary Committee in October 2008, John C. Eastman, a law professor at Chapman University and a fellow at the Claremont Institute, argued that illegal aliens are still foreign nationals and are not subject to U.S. jurisdiction, except for purposes of deportation, therefore their children born on American soil should not be automatically considered U.S. citizens.

During debate on the Fourteenth Amendment, Sen. Jacob Merritt Howard of Michigan added jurisdiction language specifically to avoid accident of birth being the sole criterion for citizenship.  And if citizenship is determined just by place of birth, why did it take an act of Congress in 1922 to give American Indians birthright citizenship, if they already had citizenship by birthright under the 14th Amendment?        

Rep. John Bingham of Ohio, regarded as the father of the 14th Amendment, said it meant that "every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your constitution itself, a natural born citizen[.]"

Rep. Nathan Deal of Georgia sought to clarify the situation through H.R. 698, the Citizenship Reform Act of 2005, which would have amended the Immigration and Nationality Act to deny automatic citizenship to children born of the United States of parents who are not U.S. citizens or are not permanent resident aliens.

H.R. 698 declared: "It is the purpose of this Act to deny automatic citizenship at birth to children born in the United States to parents who are not citizens or permanent resident aliens."  The bill undertook to clarify "subject to the jurisdiction of the United States" to the meaning originally intended by Congress in the 14th Amendment.

The current interpretation of birthright citizenship may in fact have been a huge mistake given the burden illegal aliens have imposed on our welfare, educational, and health care systems, as well as, through increased crime, on our legal system – a very costly one. 

There may be hope of correctly interpreting the 14th Amendment through a court case as President Trump reshapes the courts, particularly the Supreme Court, with justices of a more "originalist" bent.  As noted, the misinterpretation could be corrected through clarifying legislation.  We can correct it judicially or legislatively, and we should.  Donald Trump was right: becoming a U.S. citizen should require more than your mother successfully sneaking past the U.S. Border Patrol.

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