Birthright citizenship: A matter for Congress to take up since the Fourteenth Amendment provides insufficient guidance

Of all the discussion of Trump's announcement that he plans to use an executive order to stop conferring citizenship on the children of illegal aliens that I've seen today, the piece that strikes me as indispensable appears at National Affairs, and is authored by Peter H. Schuck, Baldwin Professor Emeritus at Yale, and Rogers M. Smith, Christopher H. Browne Distinguished Professor of Political Science at the University of Pennsylvania. In 1985, they coauthored a book entitled Citizenship Without Consent: Illegal Aliens in the American Polity.

They point out that our supreme legal document didn't really even address the matter until 1868:

The original Constitution was silent about immigration and the qualifications for citizenship, other than a provision empowering Congress to regulate naturalization. The first mention of national citizenship in the document came in 1868 with the ratification of the 14th Amendment. Its first section — the Citizenship Clause — reads as follows: "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 precise meaning of the phrase that we have italicized — "and subject to the jurisdiction thereof" — is at the heart of the debate over whether the U.S.-born children of illegal aliens are automatic birthright citizens.

The intention of the 14th Amendment's framers or ratifiers specifically regarding the children of foreigners present in America in violation of U.S. laws is essentially impossible to discern. No framer or ratifier mentioned that topic, so no specific intent is there to be found. Birthright citizenship originated in feudal doctrines of perpetual allegiance that the American revolutionaries rejected in favor of a consensual view that, as the Declaration of Independence put it, governments derive "their just powers from the consent of the governed," and that people are entitled, and perhaps duty-bound, to withdraw their consent from unjust governments. The best way to make sense of the 14th Amendment's Citizenship Clause, therefore, is to attend both to constitutional history (that is, what its framers sought to accomplish by it) and to constitutional theory, or how to make the clause fit most comfortably with general principles of American republicanism, including commitments to popular self-governance, civil solidarity, and inalienable human rights.

There was a specific purpose in crafting and ratifying that amendment. There's one clause in it, however, that, for its literal brevity, has given Constitutional scholars and judges reason to mine its implications ever since:

The Citizenship Clause's chief aim was to overturn Dred Scott and guarantee citizenship to all persons of African descent born on U.S. soil or naturalized here. But its guarantee of birthright citizenship to the U.S.-born was not fully universal, because the clause contained an opaque qualifying phrase: "and subject to the jurisdiction thereof." The most important and under-studied question in regard to the Citizenship Clause is the meaning of this phrase — then and now — given the framers' and ratifiers' intentions.

As we elaborated in our book, the context of 1868 is key to interpreting that phrase. The United States did not restrict immigration at that time, but did exclude several groups born on soil governed by the U.S. from birthright citizenship. Plainly, the phrase "subject to the jurisdiction" was meant to leave Congress with the power to regulate access to birthright citizenship for groups to whose presence or membership it did not consent.

So what does "subject to the jurisdiction" mean? This inquiry must focus on the clause's treatment of Native Americans born into tribes. Everyone agrees that "subject to the jurisdiction" was intended to exclude the children of foreign diplomats, occupying enemy armies, and children born to foreigners while on foreign vessels in U.S. waters — even though they are then literally subject to our jurisdiction. Everyone also agrees that the 14th Amendment's framers intended to exclude tribal Native Americans. (The Supreme Court would so hold in 1884, and Congress chose to confer statutory citizenship on them in 1924.)

These exclusions from automatic citizenship at birth reflected the general principle animating the phrase "subject to the jurisdiction": the mutual consent between the parents and the U.S. government to their legal presence on U.S. soil as immigrants owing allegiance to the United States. Native Americans in tribes fit that description of the excluded; they were "domestic dependent nations," as Chief Justice John Marshall famously put it decades earlier, who did not profess or owe full allegiance to our government.

The discussion of Native Americans leads to a consideration of mutual consent, a concept that applies to the present situation:

 The fact that some of the clause's supporters thought that the government could not and should not confer citizenship on the native tribes in no way implies that they would have wanted to confer automatic citizenship on the children of those present in the U.S. in violation of American law. Indeed, if anything, it implies the opposite. Rather, their treatment of tribal Native Americans suggests their determination to make mutual consent to full membership the sine qua non for constitutionally mandated citizenship.

The two authors actually disagree as to whether Congress's inaction on something then leaves other branches free to weigh in. On this, LITD side with Schuck:

Broadly speaking, when the Constitution itself does not answer important questions with clarity, decision-making should usually be left to the people's elected representatives in Congress, so long as they do not violate fundamental rights. This properly leaves Congress with the authority to decide the question of birthright citizenship for these children. Does the Citizenship Clause constitute this consent to their birthright citizenship? Again, no one at the time even raised the question, for a single reason: The group did not then exist. Should Congress's failure to alter the status quo by statute or by constitutional amendment support an inference that the American people have consented to this status quo?

This congressional inaction might have some bearing on the public debate over the political and policy issues raised by our interpretation of the Citizenship Clause. The two of us differ, however, about how this inaction should affect the interpretation of whether the clause's consensual requirements have been met. Given that bills to repeal birthright citizenship for the children of unauthorized aliens have failed repeatedly for over two decades, Smith argues that Congress has effectively decided in favor of the current policy. In contrast, Schuck maintains that no such inference should be drawn legally or politically. Thousands of legislative proposals are introduced in each Congress; the vast majority of them go nowhere, for a host of reasons. This is why the Supreme Court routinely states that it will not draw any inferences about congressional intent from such inaction.

There's much more that they take a look at. A definite read-the-whole-thing piece.