Less than two weeks into his second presidency, the fearmongering surrounding Donald Trump has already reached a fever pitch. “He can’t do it!” critics have howled, decrying President Trump’s landmark day-one executive order, “Protecting the Meaning and Value of American Citizenship,” which upends the status quo on birthright citizenship for the children of illegal aliens. The usual suspects in the punditocracy claim Trump’s order is “blatantly unconstitutional,” “violates settled law,” and is perhaps even “nativist” or “racist.”
Like the Bourbons of old, pearl-clutching American elites have learned nothing and forgotten nothing. When it comes to birthright citizenship, the virtue signaling and armchair excoriation are not just silly—they are dead wrong on the law. Trump’s January 20 executive order on birthright citizenship is legally sound and fundamentally just. The maestro of Mar-a-Lago deserves credit, not condemnation, for implementing such a bold order as one of his very first second-term acts.
The citizenship clause of the 14th Amendment, ratified in 1868, 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.” The clause’s purpose was to overturn the infamous 1857 Supreme Court case, Dred Scott v. Sandford, and thereby ensure that Blacks were, and would forever be, full-fledged citizens.
But Blacks were here from America’s beginning. The ruinous slavery debate aside, in 1868 Blacks were thus universally viewed—unlike, for example, American Indians—as “subject to the jurisdiction” of the United States. (Congress did not pass the Indian Citizenship Act, which finally granted birthright citizenship to American Indians, until 1924.) Our debate today thus depends on whether, in 1868, aliens—legal or illegal—were considered “subject to the jurisdiction” of the United States.
They weren’t.
In the post-Civil War Republican-dominated Congress, the 14th Amendment was intended to constitutionalize the Civil Rights Act of 1866, which had passed two years prior. Rep. James Wilson (R-Iowa), then House Judiciary Committee chairman and a leading 14th Amendment drafter, emphasized that the amendment was “establishing no new right, declaring no new principle.” Similarly, Sen. Jacob Howard (R-Mich.), the principal author of the 14th Amendment’s citizenship clause, described it as “simply declaratory of what I regard as the law of the land already.”
In other words, the 14th Amendment formalized the Civil Rights Act of 1866. And the citizenship clause of that law reads: “All 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.” In other words, “subject to the jurisdiction thereof” necessarily excludes those “subject to any foreign power.” As then-Senate Judiciary Committee Chairman Sen. Lyman Trumbull (R-Ill.) said during the 14th Amendment ratification debate, “subject to the jurisdiction” means subject to the United States’ “complete” jurisdiction—that is, “not owing allegiance to anybody else.”
The 14th Amendment thus constitutionally requires that neither legal nor illegal aliens be afforded birthright citizenship. (Whether Congress passes additional rights-bestowing laws of its own volition is a separate matter.)
This understanding was unchallenged for decades. In the 1873 Slaughter-House Cases, Justice Samuel Miller interpreted the citizenship clause as “intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” And in the 1884 case of Elk v. Wilkins, Justice Horace Gray held that “subject to the jurisdiction” means “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”
It’s true that Gray inexplicably reversed course in an oft-cited 1898 case, United States v. Wong Kim Ark. Over a powerful and compelling dissenting opinion joined by Justice John Marshall Harlan, the sole dissenter in Plessy v. Ferguson, Gray held that there is some level of birthright citizenship for the children of aliens. But even in that wrongfully decided case, the court emphasized that its holding was limited to children of “resident aliens” who were under “the allegiance” of the United States. The court repeatedly emphasized that its holding only applied to those legitimately “domiciled” here.
In no world whatsoever does Gray’s pro-birthright citizenship opinion in Wong Kim Ark apply to children of illegal aliens. Eighty-four years later, in Plyler v. Doe, the court dropped a superfluous footnote indicating that Wong Kim Ark applies to the children of illegal aliens too. But this nonbinding footnote from Justice William J. Brennan Jr., a leading liberal, does not the “law of the land” make.
Fourteenth Amendment-mandated birthright citizenship for children of illegal aliens is, at best, a live and unsettled legal debate. But the original meaning is quite clear: The amendment’s draftsmen would have been aghast at the notion that people who broke our laws and entered our soil illegally could then be afforded birthright citizenship for their children. The drafters likely foresaw, as so many today do not, the tremendous perverse incentives induced by such an ill-conceived policy.
The so-called legal eagles are wrong. And Trump, yet again, is right.
