In the WaPo Opinion pages Michael Anton tries to split an exceedingly fine hair when it comes to birthright citizenship:
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.
A constitutional amendment was thus necessary to overturn Dred Scott and to define the precise meaning of American citizenship.
That definition is the amendment’s very first sentence: “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 amendment clarified for the first time that federal citizenship precedes and supersedes its state-level counterpart. No state has the power to deny citizenship, hence none may dispossess freed slaves.
Second, the amendment 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.”
Several problems immediately present themselves.
First, the citation concerning the debate over the Amendment is suspect on its face. Our first line of communication are our words, so what does jurisdiction mean?
n. the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases. [Law.com]
The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or ad- mitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient. [Black’s Law Dictionary]
Whether or not Senator Trumbull used that definition for the phrase, the simple fact of the matter is that jurisdiction does not mean Does this person have allegiance to the nation claiming the particular acre of land currently hosting our abstract person, it means, according to a couple of law dictionaries which I will freely interpret, which court or legal entity has the authority to enforce law in said acre of land. We need to be mindful of the words themselves, not the supposed artificial meaning given to them at the time. If the authors of the Amendment had wanted it to say what Anton claims they meant, they should have written it clearly.
Second, even if we’re willing to accept the strained argument concerning jurisdiction, then if someone is born on U.S. soil, they are, at that time, an infant. Infants don’t have allegiances. We can hide behind legal guardians and that sort of thing, but in the end, it’s better to have a law that doesn’t depend on a proxy for the person in question, since that proxy may not reflect the endpoint desires of that infant – that is, what that infant wants when they grow up.
Third, if the State doesn’t have jurisdiction, who does? Who imposes order when imperfect humans demand their self-interested objects and begin banging heads? Obviously, I find it hard to accept the first argument, so perhaps this one is a trifle dubious, but it still strikes me as important to understand this Amendment from its plain language.
And this is all very unfortunate, because there’s a real debate to be had here. Who, and how, should someone qualify for citizenship? The assignment of citizenship to those born on American soil may be too broad might be a very worthy side to argue in a debate. A similar debate is implicitly set forth, appropriately enough, in a science fiction novel of many decades ago. Robert Heinlein’s Starship Troopers, while sounding like an action novel, and presenting itself as such, has as one of its indispensable facets a debate over just who deserves citizenship (or, more accurately, first-class citizenship, which brings with it the right to vote). For a man who many revere for his libertarianism as well as for his writing skills, the central lesson he drives home is unexpected. He comes across with the observation that citizenship should only be granted those who’ve learned to put the group before themselves – a communal observation if ever there was one.
