The protections of Section 1 of the 14th Amendment have for the most part been applied very erratically, in part because broad constitutional protections are exactly as good as the government official interpreting them. (Most of the framers were well aware of this — they spent much more time deliberating over the language in Section 2.) The exception is at the beginning:
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 language is clear and specific enough, and the purpose in context clear enough, that even egregiously white supremacist courts that refused to apply the rest of Section 1 or only applied it to strike down economic regulations didn’t question birthright citizenship. But this is Donald Trump’s Republican Party, and its “intellectuals” are willing to argue anything, so we get this from Michael “Flight 93” Anton:
The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.
Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment. The purpose of that amendment was to resolve the question of citizenship for newly freed slaves. Following the Civil War, some in the South insisted that states had the right to deny citizenship to freedmen. In support, they cited 1857’s disgraceful Dred Scott v. Sandford decision, which held that no black American could ever be a citizen of the United States.
Well, hard to begrudge Anton the “I will deplore a safely discredited racist decision of the past because that will totally make the racism I’m doing now OK” routine, given that it’s also used to justify disgraceful decisions by the highest brows of the conservative legal movement.
The argument comes down to this:
Second, it specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else,” that is, to no other country or tribe. Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
Even if we are to take the quote at face value, it wouldn’t carry the weight Anton claims it does. Like 99% of “originalism,” this is law office history: that is, not history at all, but cherry-picked factoids intended to buttress a pre-determined conclusion. It would hardly suffice to displace the clear meaning of the text, interpreted the same way by consensus for more than a century, even during periods of intense anti-immigrant sentiment.
But the insertion of the “[or]” is a massive tell to anyone but an editor at WaPo opinion that this is bullshit, and sure enough:
And the argument is even more ridiculous when put in the full historical context:
So the entire basis of Anton’s argument is a lie, and a very obvious one. And it’s not as if he hides what he’s up to:
It is no wonder that citizens of other countries take advantage of our foolishness. Life is still better here than almost anywhere else, including rising China and relatively prosperous Mexico. The wonder is that we Americans continue to allow our laws to be flouted and our citizenship debased.
More here. It’s flat-out appalling that Hiatt and company published this use of fake history to justify egregious racism.
you know, you don't *have* to publish calls for ethnic cleansing in your widely read newspaper https://t.co/ajQORvAEFW
— Ashley Feinberg (@ashleyfeinberg) July 18, 2018