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May 31, 2023

Birthright Citizenship Is Unconstitutional

Donald Trump brought up the issue again yesterday, and Joe Biden’s ongoing border catastrophe makes it all the more urgent.

The number one issue in American politics is still “the economy, stupid,” and each candidate in the Republican field had better be able to talk compellingly about it between now and November 5, 2024.

Beyond that, though, it’s immigration. And more particularly, illegal immigration — of the sort that has encouraged more than six million mostly male, mostly low-skilled individuals to “surge” into our country during the brief and ruinous tenure of the open-borders Biden administration.

Here again, our candidates had better be able to talk about it.

One of those candidates — the runaway Republican front-runner, Donald Trump — was talking about it yesterday, in fact, when he vowed that if he returns to the White House he’ll sign an executive order ending birthright citizenship for children born to illegal aliens. As The Washington Times reports:

Mr. Trump made the announcement on his social media platform, Truth Social, saying it was time to stop “a reward for breaking the laws of the United States.”

“The United States is among the only countries in the world that says that even if neither parent is a citizen nor even lawfully in the country, their future children are automatic citizens the moment the parents trespass onto our soil,” the former president said.

Almost immediately, the leftists snatched up their “14th Amendment” megaphones and began parroting the language that says, “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.”

Case closed, right? Trump is just firing for effect, right?

Wrong. There’s a very strong constitutional case to be made against birthright citizenship — a case built on the original intent of the 14th Amendment. Our Mark Alexander, in fact, made the case 13 years ago, and his exhaustive argument is no less compelling today.

Trump went on to call the Left’s legal case for birthright citizenship “a myth and a willful misinterpretation of the law by open borders advocates.” And he’s right. As constitutional scholar Matthew Spaulding argued in a 2018 piece titled “The Case Against Birthright Citizenship”:

Democrats and Republicans alike have raised the banner of the 14th Amendment: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” They claim this means anyone born in the U.S. has a constitutional right to citizenship. But a closer look at the language and history shows this is not the Constitution’s mandate and should never have become national policy.

The crucial phrase is “subject to the jurisdiction thereof.” As originally understood when Congress proposed the amendment in 1866, that referred not merely to the obligation of following U.S. laws but also, and more important, to full political allegiance. According to Lyman Trumbull — who was chairman of the Senate Judiciary Committee and a co-author of the 14th Amendment — being “subject to the complete jurisdiction of the United States” meant “not owing allegiance to anybody else.”

Nonetheless, “The amendment has been interpreted to mean that those born in the United States are citizens of the United States,” reports Steve Benen, a constitutional illiterate at MSNBC. “Trump, evidently, intends to return to the White House and sign an executive order to end the constitutional guarantee.”

Except that there’s no “constitutional guarantee” of birthright citizenship.

“Right off the bat, there’s an obvious legal problem,” Benen writes. “Presidents don’t have the authority to announce that certain parts of the Constitution no longer count because they say so. Were the Republican to make such an attempt, a difficult legal fight would soon follow.”

Benen is wrong about many things, but he’s right about one: that a difficult legal fight would follow any attempt by the Republicans to curtail the Democrats’ cynical effort to grow the size of Brown America and thereby — so the thinking goes — grow the size of their otherwise shrinking electorate.

But in the meantime, why can’t a sitting president issue an executive order to end a policy that he — and the majority of the American people — find objectionable? Executive orders are unappealing, of course, because they don’t have the permanence of legislation, but when you’re fighting for your country, you use whatever tools can help you enact the desired policy or move the argument forward. In this case, an executive order would do both.

Besides, it would — strategically, no doubt — force the issue into the courts, where an originalist majority at the Supreme Court might set the record straight.

Think about what’s at stake. As Andrew R. Arthur, a resident fellow in law and policy at the Center for Immigration Studies, notes: “No country in Western Europe offers birthright citizenship without exceptions to all children born within their borders. Many countries, including France, New Zealand, and Australia, have abandoned birthright citizenship in the past few decades. Ireland was the last country in the European Union to follow the practice, abolishing birthright citizenship in 2005.”

Further, Arthur writes, we’re absorbing a terrible financial burden: “The costs of births for the children of illegal aliens is staggering. The Center for Immigration Studies (CIS) estimates that in 2014, $2.35 billion in taxpayer funding went to pay for more than 273,000 births to illegal immigrants.”

Ultimately, the legality of birthright citizenship depends on what the meaning of the word “jurisdiction” is. And while those on the Left keep using that word, we don’t think it means what they think it means.

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