A Whole Constitution

“A Whole Constitution, Or A Constitution Full of Holes”

by John Fockler

For some time now, our American “Nativists,” those who believe in “America for the Americans” and oppose most immigration, have grated over the doctrine of birthright citizenship, the principle that any person born on US soil, regardless of the immigration status of his or her parents, is an American citizen.

Now comes our president, who is promising to issue an executive order putting an end to it.  This right was the common practice in the US before it was ever enshrined in the Constitution, but it was explicitly guaranteed in Amendment XIV, passed three years after the end of the Civil War in 1868, which says, “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.”

Sounds pretty clear, doesn't it?

But the Nativists have an argument that these words don't mean what they say.  They point out that Amendment XIV was written and passed following the Civil War in answer to the problems that African-Americans were having in securing their civil rights, a problem, by the way, which continues, albeit in somewhat lesser degree, to this day.  The Nativists go on to claim that the authors of this amendment meant it to apply only to those formerly held in captivity because of their race, and that had they known that it would ever be applied more broadly, they would have been more specific.

This, ladies and gentlemen, is utter poppycock.

It is quite true that this amendment was written following the Civil War and was intended to address the citizenship issues of African-Americans.  But there is no reason – none whatsoever – to believe that the authors intended that its effects be limited to those people alone.  Some quick facts: immigrants have always been a part of our society.  The Congress of 1868, with the Civil War fresh in their memories, would have been aware of the part that immigrants had just played in the war effort.  According to the National Park Service, over 150,000 Irish-born soldiers fought in blue, including several who reached general's rank, and tens of thousands more who were sons of immigrants joined them.  No one ever questioned their citizenship – or ever would have.  Another source numbers native Germans in Federal uniform at over 200,000.  In all, over half a million Union soldiers were foreign-born, not quite one out of every four.  This trend continued after the war.  The cavalryman who rode with Custer was as likely to speak with an Irish brogue as with a flat midwestern accent or a southern twang.  The era was most definitely not one of “nativist” sentiment.

Another argument has been advanced in support of the idea that birthright citizenship can be ended with the stroke of a pen.  This argument surrounds the phrase, “subject to the jurisdiction thereof.”  Supporters of this argument claim that 'illegal immigrants' are not subject to the jurisdiction of the United States, and therefore, their children are not and are not entitled to birthright citizenship.  Two sources I consulted noted that this phrase has been found by the courts to exempt the children of foreign diplomats and one says that such was the intent of the writers of the amendment. 

According to one dictionary source, the fourth defintion of the word “jurisdiction” is “the territory or sphere of activity over which the legal authority of a court or other institution extends.”  Now, I can see how foreign diplomats would not be considered as being under the jurisdiction of the United States.  Under international law, diplomats enjoy a privilege called diplomatic immunity, which means that they cannot be arrested nor tried for most crimes.  The most that can be done is to declare the diplomat “persona non grata,” and require him or her to leave the country immediately.

But I can see no logic to asserting that an immigrant, legal or 'illegal' can be considered to not be subject to the jurisdiction of the United States.  From the moment of setting foot on US soil, the immigrant is subject to the laws of the US and may be held liable for his or her actions.  According to the Selective Service website, undocumented male immigrants are expressly required to register for Selective Service, which I would characterize as a clear case of being subject to the jurisdiction of the country.  In fact, a case can be made that the 'illegal immigrant' is even more subject to the jurisdiction of the United States than the citizen or legal immigrant, as he or she can be arrested for no cause other than being present on US soil, and may be held without trial and deported without recourse.  And if the 'illegal immigrant is so subject, then his or her child must be, whether born in the US or not.  From the moment of his or her birth, that child is subject to the authority of the government of the United States.

There's another problem, though, with our modern Nativists' allegation.  These very same people who want to find an unwritten subtext in Amendment XIV are the same folks who are most likely to insist on a literal reading of Amendments II, IX, and X, to name just a few.  It doesn't seem to dawn on them that one cannot logically be a literalist on some amendments and not on others.

Now me, I don't have this problem.  I look at the Constitution the way a Southern Baptist tends to look at his Bible.  I want a whole Constitution, not a Constitution full of holes.  Just as I believe that the Founding Fathers knew exactly what they were doing when they wrote the Constitution and the Bill of Rights, so I believe that the statesmen of 1868 knew what they were doing when they wrote Amendment XIV.  I believe that they didn't limit the provisions of this amendment to freed slaves not because they didn't think of it or anticipate another interpretation but because it was never their intent to do so.  I even believe that the statesmen of 1919 meant exactly what they said when they wrote and passed Amendment XVIII, and that that's why we needed to pass Amendment XXI in 1933 to get rid of it.  I'm a dyed-in-the-wool literalist.

So as I see it, those who wish to end birthright citizenship have two ways they can go.  They can find a test case, take it to court, and work their way through the court system hoping for a better answer.  This would be a tough row to hoe, as more than half a century of precedent is against it.  Still, courts have overturned precedent before.  If President Trump has the chance to name two more justices who suit his tastes, perhaps this can be done.  Or, they could seek to amend the Constitution again.  This is also a pretty steep hill to climb, as it requires the support of two-thirds of the members of both houses of Congress and then ratification by three-quarters (currently 38) of the states.  Of course, they could also seek a convention of the states, the alternative means of amending the Constitution contained in the document, and place such an amendment before it.  This contains other dangers, as no one is sure who would be chosen as delegates or whether the scope of such a convention could be limited to particular topics.  And ratification by the several states would still be required.

Frankly, I question whether President Trump really intends to issue the executive order to end birthright citizenship.  He would have to know that such an action woud draw immediate legal challenges and would be unlikely to survive.  The timing of the announcement, just one week before the upcoming midterm elections, leads me to suspect that this is merely a political ploy, aimed at energizing his constituency and rallying them to flock to the polls.  We shall see if he actually carries through with his promise.

Birthright citizenship is a part of our Constitution, because the statesmen of 1868 put it there deliberately, and because it is an integral part of history and our culture from the days before we declared independence from Great Britain.  Any argument to the contrary is just plain wrong.