Within a span of days, National Review Online has published two interesting pieces on birthright citizenship with diametrically opposing views, though each speaks to the centrality of the 14th Amendment in framing the current debate.
It is the first sentence in Section 1 of the 14th Amendment that is at issue: "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."
On August 19, NRO provided us with "Trump's Critics Are Wrong About the 14th Amendment and Birthright Citizenship", by Edward Erler. Although, as the title makes clear, the article speaks to Trump's poll positioning and the dismay he is causing for more traditional Republicans, the meat of it is in Erler's views on why the 14th Amendment should not be read as a carte blanche for all individuals born in the United States to be presumed to have accrued citizenship at birth, and that simple passage of a bill passed by Congress and signed into law by the president would suffice to clarify the issue of whether or not the children of illegal aliens or nonimmigrants, such as tourists or foreign students, are entitled to U.S. citizenship.
On August 22, NRO published "On Citizenship, the 'Birthers' Are Right: Constitutional law, tradition, and fairness all argue in favor of birthright citizenship", by John Yoo. As his title suggests, Yoo takes the contrarian view to Erler's and suggests that only a constitutional amendment would suffice. I would observe, though, that "tradition" and "fairness", like beauty, are in the eyes of the beholder, and form weak arguments in favor of universal birthright citizenship. Is it fair, for example, for a child born of nonimmigrants to return to the United States as a citizen late in life, having contributed nothing to the well-being of our society and for all intents and purposes a stranger, and then not only avail himself of the panoply of social entitlements such as Social Security and Medicare, but also then to initiate a cascading migration chain that includes his parents, siblings, wife, and children (and ultimately his wife's family as well)?
In making their arguments, both authors focus on the phrase "subject to the jurisdiction thereof" and what Congress intended when inserting it into Section 1. Both lay out the background of the amendment, adopted in 1868 to ensure that in a post-civil war America the taints of slavery and the abysmal Supreme Court decision in the 1857 case of Dred Scott were, if not washed away, then at least ameliorated by guaranteeing that former slaves were legally and constitutionally understood to be citizens.
However, as both authors note, legislators and scholars were aware that not just slaves would be affected by the amendment. Both authors agree, for instance, that the phrase at issue was intended to recognize that certain classes of individuals not subject to the jurisdiction of the United States would be excluded from the birthright claim, among them diplomats and Native Americans. This latter may come as a surprise to many people, but at the time native Americans were thought to be members and citizens of their tribes and tribal confederations, not U.S. citizens.
It is on this point that Yoo's own arguments work against him. He would have us believe that the phrase "subject to the jurisdiction" is locked into one interpretation and that the amendment cannot be construed otherwise. In other words, people inside the parameters of the amendment (as he understands it) cannot be denied citizenship simply through enactment of a federal statute — as opposed to initiating a new amendment or altering the language of Amendment 14 as it now exists — and that this must inevitably therefore include pretty much everyone else.
But if this were true, then it would also follow that classes of individuals outside Yoo's interpretation of the phrase "subject to the jurisdiction" could not legally be made citizens by virtue of a federal statute, because to do so would require a constitutional amendment, not simply passage of a law. Yet Congress did exactly that via a series of laws granting citizenship to portions of the Native American population, culminating in 1924 when it passed, and the president signed into law, the Indian Citizenship Act, conferring universal U.S. citizenship on all Native American peoples.
Were we to take Yoo's understanding of the parameters of the 14th Amendment as accurate, we'd be living in a country where Native Americans — the first Americans — would be denied citizenship, while at the same time all the rights, privileges, and benefits that accrue to that status would be conferred upon the children of illegal aliens and even nonimmigrants, including "birth tourists" who come for the sole purpose of having children on our soil. Does that make sense? To accept this view defies logic, defies history, and certainly defies fundamental fairness.