As expected, President Trump’s executive order limiting birthright citizenship was immediately challenged by attorneys from four Democrat-controlled states, and a Seattle judge promptly blocked it with a temporary restraining order. This isn’t a setback for Trump, it’s an opportunity to set in motion an appeals process that will ultimately be decided by the U.S. Supreme Court.
What constitutes birthright citizenship has been contested for a century-and-a-half and wasn’t to be resolved by an executive order.
Original versus living
It’s a classic dispute between conservatives who believe in the original intent of the Constitution versus progressives who don’t want to be constrained by that. To circumvent original intent, they’ve contrived the notion of a so-called “living Constitution” empowering progressive judges to reinterpret the Constitution to conform with they believe the Constitution ought to say based on their ideology. The old-fashioned democratic process of amending the Constitution is too cumbersome an obstacle to the achievement of the Left’s political agenda. They justify open borders on humanitarian and “social justice” grounds while privately relishing the prospect that a tidal wave of migrants will return the favor by becoming lifelong Democrat voters.
When the showdown arrives at SCOTUS, the court’s composition ― six originalist justices and three progressive, living-constitutionalists ― favors the chances of a decision rolling back the unconstitutional expansion of birthright citizenship under current law, which considers children born here to illegal aliens to be U.S. citizens.
The Fourteenth Amendment to the Constitution was ratified following the Civil War in 1868. It was all about ending slavery and punishing the southern rebellion. Section 1 granted citizenship and all constitutional protections to former slaves “born or naturalized in the United States, and subject to the jurisdiction thereof.” As it now applies to foreigners, that key phrase doesn’t just mean being subject to our laws. The framers of the Amendment intended that allegiance to the U.S. be exclusive and to no other country. Foreign tourists legally or illegally in the U.S. are subject to our laws but not our political jurisdiction. They owe no allegiance to the U.S. Hence, if a child is born to them while they’re visiting here, that child should have no automatic right to American citizenship. In an 1884 case, Elk v. Wilkins, SCOTUS ruled that even Indians weren’t granted citizenship by the 14th as they were subject to tribal jurisdiction, not U.S.
Arguing ‘jurisdiction’
Consistent with that precise intent, the same Congress that passed the 14th also passed a civil rights law in 1868 restricting American citizenship to those born here “and not subject to any foreign power.” The author of the 14th, Rep. John Bingham of Ohio, invoked that same principle when he confirmed “that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen,” denying automatic citizenship to children born to foreigners in our country who are subject to another foreign power.
This foundational principle prevailed for another century until it was upended in 1984 by a liberal 5-4 SCOTUS majority led by Justice William Brennan. In Plyer v. Doe, the majority ruled the equal protection clause of the 14th immunized children of illegal aliens from a Texas law that withheld funding to school districts for their education. But it did not grant them citizenship. Brennan, however, went a bridge too far by further slipping a footnote into his opinion asserting there was no “plausible distinction” between lawful and unlawful entry by resident aliens with respect to 14th Amendment “jurisdiction.” But the case’s ruling had no bearing on jurisdiction in the sense of citizenship. Nonetheless, Plyer v. Doe somehow became the “precedent” upon which the Left has built its house of cards on illegal immigration, anchor babies, “dreamers,” asylum, parole, and a path to accelerated citizenship. They pawn this off as “comprehensive immigration reform” that never seems to enforce border security, much less building a wall.
Ultimately, SCOTUS can make its ruling unequivocal with the majority opinion declaring: “It was the intent of the Fourteenth Amendment that only those persons born to citizens of the United States or naturalized in the United States, and subject to the exclusive jurisdiction thereof, are the citizens of the United States.”
Longtime KOA radio talk host and columnist for the Denver Post and Rocky Mountain News Mike Rosen now writes for CompleteColorado.com.
