How Many Errors Should Be Allowed?

The topic of discussion for this Constitution Monday is birthright citizenship. One of many executive orders signed by newly inaugurated President Donald Trump was his order on birthright citizenship. According to Amy Swearer at The Daily Signal, Trump’s order “directed federal agencies to stop issuing citizenship documents for children born in the United States unless at least one parent was a citizen or lawful permanent resident” at the time the child is born.” A second probe came from the U.S. House of Representatives where a bill was introduced calling for an end to birthright citizenship. 

At least 18-22 states plus two large cities filed lawsuits against Trump’s executive order, and a judge in Washington called the order unconstitutional and shut it down temporarily. Everyone expects the Trump administration to take the case to a higher court.

Meanwhile, Swearer authored an article claiming that she and her colleagues “have long argued” that “such a move is not only perfectly consistent with the original public meaning of the 14 Amendment’s citizenship clause, but is an important and necessary course-correction in federal immigration policy.” She claims that the lawsuits filed by Democrat-controlled states in federal court were expected but “largely terrible.” She then proceeded to share “four of the most erroneous things they assert in their lawsuit.”

Error #1: The citizenship clause merely adopted the pre-Dred Scott common law rule that everyone born in the United States is automatically a citizen.

In 1856, the Supreme Court held in the infamous case of Dred Scott v. Sandford that the U.S.-born descendants of African slaves were not and could never become citizens, even though under the traditional common law rule, a person automatically became a citizen of the nation on whose soil he or she was born. The plaintiffs contend that the 14^th Amendment’s citizenship clause was intended to restore this earlier common law rule of universal birthright citizenship….

While it’s true that Congress sought to override Dred Scott, this doesn’t mean it sought to adopt the pre-Dred Scott common law rule.

It's clear from the unedited context and a comprehensive reading of the legislative history that when Howard referred to the “law of the land already,” he wasn’t referring to the pre-Dred Scott common law rule of universal birthright citizenship. That common law rule, after all, had been largely abrogated by the Dred Scott decision.

Instead, Howard was referring to the Civil Rights Act of 1866, which was valid federal law. That act was Congress’s first attempt to override Dred Scott, and statutorily defined birthright citizenship for the first time in American history: “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

Far from being an adoption of common law universal birthright citizenship, the Civil Rights Act intended to bestow birthright citizenship only on the children of those who, like the newly freed slaves, owed complete allegiance to the United States and were subject to the fullest extent of its political jurisdiction….

Error #2: This is an unprecedented action – the executive branch has long recognized that it can’t deny citizenship to children based on the immigration or citizenship status of their parents.

This assertion is only true if history begins in the first half of the 20^th century. Unfortunately for the plaintiffs, it doesn’t. In the decades following the ratification of the 14 Amendment, the federal government regularly articulated a view of the citizenship clause that’s remarkably similar to that espoused in Trump’s order, and the executive branch issued citizenship documents accordingly.

For example, in 1885, Secretary of State Thomas Bayard instructed federal officials not to consider a U.S.-born man to be a U.S. citizen because his German parents were never permanent U.S. residents and returned with the child to Germany when he was 2-years old. He was, therefore, at the time of his birth, “subject to a foreign power” and not “subject to the jurisdiction of the United States.”

Earlier that year, then-Secretary Frederick Frelinghuysen similarly instructed officials to deny a man a U.S. passport despite his birth on U.S. soil, because his German father brought him back to Germany as an infant and raised him there. He wrote that “the fact of birth [in the United States], under circumstances implying alien subjection, establishes of itself no right of citizenship.”

And in 1890, the secretary of the treasury issued an opinion denying citizenship for the child of a would-be immigrant who was being held on a ship in New York Harbor while awaiting immigration approval. The mother had been allowed to give birth and receive treatment at a New York hospital. Nonetheless, they were deported as noncitizens, and the opinion distinguished this case from that of an immigrant mother who’d “resided in this country a considerable time before her child was born.”

Error #3: The Supreme Court confirmed in Wong Kim Ark that the citizenship clause automatically bestows citizenship on the U.S.-born children of noncitizen parents.

Contrary to popular assertions, this is not what the Supreme Court held in the 1898 case of Wong Kim Ark v. United States. The question decided by the court in that case was far narrower: whether a child born in the U.S. to lawfully present and permanently domiciled immigrant parents was a U.S. citizen. And the court concluded that, indeed, the U.S.-born child of this narrow and specific subset of noncitizen parents is a citizen.

Importantly, at the time, the Chinese Exclusion Acts effectively prohibited Chinese immigration and prevented those Chinese immigrants already lawfully residing in the U.S. (like Wong Kim Ark’s parents) from becoming naturalized citizens. The court was assessing a situation where federal law created a permanent race-based barrier to citizenship, that resulted in a class of lawful permanent residents being relegated to perpetual alienage throughout subsequent generations. This was an almost identical scenario to the situation of the U.S.-born descendants of African slaves after Dred Scott, which Congress was specifically trying to rectify with the Civil Rights Act and 14^th Amendment.

But Wong Kim Ark does not stand for the premise that all U.S.-born children of all immigrants under all circumstances are automatically citizens. Nor does it mean that the Supreme Court definitively held that the 14^th Amendment adopted the full scope of the common law’s universal birthright citizenship. In fact, the court repeatedly emphasized the lawful and permanent domicile of Wong Kim Ark’s parents, factors that are utterly irrelevant under the common law. A true common law opinion would have said, “He was born on U.S. soil, his parents aren’t diplomats or part of some invading army, so therefore he is a citizen.”

This is also why, for decades after Wong Kim Ark, leading constitutional law scholars continued to articulate a distinction between American birthright citizenship under English common law, which applied even to temporary sojourners.

Error #4: The president’s order will leave many children deportable and stateless.

It would rarely, if ever, be true that a U.S.-born child of illegal or nonpermanent resident aliens would be left stateless simply because he or she isn’t automatically granted U.S. citizenship. Virtually every nation (including the United States) recognizes some manner of citizenship “by blood,” under which a child is automatically eligible for citizenship when one or both parents are citizens, even if that child is born abroad….

The plaintiffs, meanwhile, don’t bother articulating a single set of circumstances under which a U.S.-born child of foreign nationals would ever be completely ineligible for – or disqualified from – citizenship or nationality in every other country [in] the world due to a confluence of legal technicalities and the fact of his or her birth on U.S. soil.

After discussing the four errors made by the plaintiffs, Swearer pointed out the obvious: “It’s clear from this lawsuit that proponents of universal birthright citizenship are far more interested in obtaining their desired outcome than they are interested in discerning what the 14^th Amendment actually meant to the people who drafted and ratified it.”