Is President Trump’s Executive Order on Birthright Citizenship “blatantly unconstitutional” as one federal judge has put it, or does it simply begin a long-overdue review of a persistent misinterpretation of the 14th Amendment? The typically shallow news coverage of the legacy media propounds the notion that anyone born in the United States is automatically a US citizen, without exception. I would argue that such an interpretation is uninformed, and that the Trump Executive order is not blatantly unconstitutional at all. It may ultimately be determined unconstitutional, but it cannot be dismissed as blatantly so. It’s a much narrower case.
The conferring of citizenship upon birth within the territorial limits of the United States is specifically limited in the language of the 14th Amendment by these words: “and subject to the jurisdiction thereof.” At the time of the debate and passage of the 14th amendment, there was a question of whether the children born here of freed but foreign-born black slaves were citizens by virtue of their birth within our borders. That was the primary purpose of Section 1 of the amendment when it was written just after the end of the Civil War. While there has been considerable debate about the original meaning of the phrase “and subject to the jurisdiction thereof,” there can be no debate that the phrase sets forth an exception to birthright citizenship. It is not universal. That can be agreed upon without necessarily deciphering what the phrase itself means.
The scope of the 14th Amendment was not interpreted by the US Supreme Court until 1898, and the issue at hand in that case did not address the citizenship of a child of a parent illegally present in the United States, for the simple reason that there were no laws broadly prohibiting immigration at that time. Therefore the phrases “illegal immigrant” or “undocumented immigrant” simply did not exist when the Supreme Court ruled in that 1898 decision. It is intellectually dishonest to claim that the 1898 decision ruled definitively on an issue that did not even exist at that time.
The hysterical howls of outrage from the Left claim that the purpose of the Trump Executive Order is to overturn the 1898 decision or even the 14th Amendment itself. That’s not the case. They can both stand unchallenged by this Executive Order. What needs to be addressed now is whether birthright citizenship automatically attaches to children born here to a mother who is illegally present in the US at the time of birth and whose father is also not legally present in this country. What should be sought is a clarification of the amendment’s application to a situation which did not exist in 1866 or 1898.
Notice the title of the Executive Order: it is PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP. It doesn’t state or imply that any constitutional precedent should be reversed. The Executive Order does not challenge the original text of the amendment or the 1898 decision.
Here is a key portion of the text of the Executive Order:
“It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship … when [the] mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of … birth …
“Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.”
I urge you to see through the misrepresentations of the anti-Trump forces who base their opposition on something other than the clear language of the Executive Order. It deserves an honest interpretation by the Supreme Court.