Birthright Citizenship and the 14th Amendment

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Lawyer 2 Lawyer – Law News and Legal Topics

Birthright Citizenship and the Fourteenth Amendment

11/12/2018

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Margaret Stock: The bottom line is this has been the rule in America for more than 100 years. If we want to overturn it and change it, we are going to need to pass an amendment to the Constitution.

Dr. John C. Eastman: The notion that in 1868 we settled the question forevermore about the children of unlawful immigrants being automatic citizens, when that was not even an issue and we have taken that power away from Congress to make basic policy judgments about what’s best for the United States of America seems to be a very big broad interpretation of the Constitution that simply is not warranted by the historical record.

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Well, in Section 1 of the Fourteenth Amendment it 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. It’s called Birthright Citizenship and it stems from the Citizenship Clause here of the Fourteenth Amendment, which was meant to override the 1857 Dred Scott v. Sandford decision that denied African-Americans citizenship.

Recently President Trump announced that he is going to put an end to Birthright Citizenship with a stroke of a pen through an Executive Order. So can the Fourteenth Amendment on citizenship be overridden by Executive Order and what would happen if in fact we repealed Birthright Citizenship or a portion of it?

So today on Lawyer 2 Lawyer we are going to discuss all of this and more with a great line up of guests, and to do that we have got Dr. John C. Eastman. He is the Henry Salvatori Professor of Law & Community Service and former Dean at Chapman University’s Fowler School of Law in Orange County, California. He is also the Founding Director of the Claremont Institute’s Center for Constitutional Jurisprudence.

Dr. Eastman’s expertise is in the United States Supreme Court, constitutional law, and freedom of religion. Welcome to the show Dr. Eastman.

Dr. John C. Eastman: Well, thank you very much for having me on.

J. Craig Williams: And our next guest is attorney Margaret Stock from the Cascadia Cross Border Law Group out of Anchorage, Alaska. She is a former law professor at the United States Military Academy at West Point New York and she focuses her practice on immigration and citizenship law.

She is a nationally known expert on immigration and national security laws and has testified regularly before congressional committees on immigration, Homeland Security and military matters. Welcome to the show Attorney Stock.

Margaret Stock: Thank you. I am pleased to be here.

J. Craig Williams: Well, I am going to think I would like to throw this over to you first, I kind of gave a little bit of background of the Birthright Citizenship issue and the Fourteenth Amendment, but can you give us the context of how it fits into current day and what the constitutional boundaries are?

Margaret Stock: Absolutely. So for more than a century all three branches of the US government have relied on a shared understanding of what it means. Everyone believes that people born in the US are citizens, regardless of their parents’ citizenship status, and most constitutional scholars would agree that an Executive Order by a president can’t erase the original meaning of the Constitution.

So why do we get into a debate about this? Well, if you start with the text you will see language in the Fourteenth Amendment that says subject to the jurisdiction thereof, and that appears to be where the controversy is today, and I think John is going to talk about his interpretation of that, but at the time that the Fourteenth Amendment was drafted it had a pretty settled meaning and it referred to somebody who was subject to US Law.

So a foreigner who visits the United States has to follow American law and can be prosecuted if he or she doesn’t follow the law, and people like that are subject to US jurisdiction or control and that was the meaning in the Fourteenth Amendment.

(00:04:57)

So who is not subject to the jurisdiction would be people who are immune from American law and at the time of the Fourteenth Amendment there were essentially three groups of people who were thought to be immune or not subject to US jurisdiction and those would be diplomats, because they hold diplomatic immunity, so their children at the time of the Fourteenth Amendment, even if the children were born in America would not be subject to the jurisdiction and therefore the children wouldn’t be citizens, and that’s still true today. We have provisions in our law that the children of diplomats get green cards but they are not citizens if they are born in America.

There were two other groups at the time of the Fourteenth Amendment that today we don’t really worry about anymore, but at the time of the Fourteenth Amendment Native Americans born on sovereign tribal lands were not considered to be subject to the jurisdiction of the United States.

And the children of invading armies, so if an army invaded the United States, perhaps such as the Japanese did during World War II and if the soldiers had children born in America, those children would not have been citizens of the United States because the invading army wouldn’t have been subject to the jurisdiction.

So that’s been the meaning for more than 100 years and we have members of Congress who are birthright citizens. We have people working for the US government and members of our armed forces for more than 100 years it’s been settled law that anyone born within the geographic boundaries in the United States, outside of the children of diplomats and so forth, anybody is an American citizen, that hasn’t been questioned. And it certainly hasn’t been questioned by the Justice Department. They take the position that anybody born in the United States, regardless of their parentage, is an American citizen.

Interestingly, John is going to be telling you his interpretation, but the issue has come up in front of the Supreme Court on a number of occasions. People seemingly claim it hasn’t, but Professor Eastman raised it in 2004 in the Yaser Hamdi case, and the Supreme Court paid no attention to the argument that Yaser Hamdi was not a citizen and went ahead and recognized him as a citizen in that court case, as recently as 2004.

J. Craig Williams: So Dr. Eastman, I believe your position is that Birthright Citizenship may not actually be in the Constitution or it’s interpreted a little bit differently?

Dr. John C. Eastman: Well, it is, and let me start with a point of agreement. If this Constitution mandates automatic citizenship for anybody born in the US soil no matter what the circumstances, then I agree with Professor Stock that the president could not alter that by Executive Order, but the question is does the Constitution actually provide for automatic citizenship for everybody except for the limited category she says?

And I think the evidence is fairly compelling in the other direction. She does focus correctly on the key phrase, subject to the jurisdiction, and I think everybody recognizes that the Fourteenth Amendment sets out two requirements for automatic citizenship; you have got to be born on US soil and you have to be subject to the jurisdiction.

And we want to look for a meaning of that phrase subject to the jurisdiction that doesn’t make it almost entirely redundant, excluding foreign armies and diplomats, and we don’t have to speculate about this. There were two understandings of that phrase at the time. There was what we call partial or territorial jurisdiction, that’s what we equate with subject to our laws, and there was more complete or political jurisdiction to the extent that you owed allegiance to the country.

And let me put it kind of in modern terms. Suppose a British citizen is here visiting as a tourist. While within our borders he is subject to our laws; he drives on the right side of the road instead of the left or he is going to get a ticket because that’s what our law says. But he is not subject to the more complete political jurisdiction. We don’t call him for jury service or military service. We don’t prosecute him for treason if he takes up arms against us. He is not subject to that more complete political jurisdiction just by virtue of his presence here.

So the real question is what did those that drafted and ratified the Fourteenth Amendment intend? And here we don’t have to speculate. The people that introduced the language on the floor of the Senate, Senator Jacob Howard was asked this point directly, what do you mean by this? And the issue then was not illegal immigration because we didn’t have restrictions on immigration at the time, but it was about the status of Native Americans. Are the Native Americans going to be citizens because they are most clearly subject to our jurisdiction, both civil and military was the way the question was posed?

Senator Lyman Trumbull, who was one of the key figures in the Fourteenth Amendment’s passage, responded, “Subject to the jurisdiction means subject to its complete jurisdiction, not owing allegiance to anybody else.” And Senator Jacob Howard, who was the one that introduced this language on the Floor, said that it must be construed to mean a full and complete jurisdiction. “The same jurisdiction in extent and quality as applies to every citizen of the United States now”.

(00:09:56)

Now, what was in place when he said now, it was the 1866 Civil Rights Act, which said that everybody born here and not subject to any foreign power, excluding Indians, not taxed, will be citizens. And so what they are doing is codifying, constitutionalizing that 1866 Act. And in both of them, the Fourteenth Amendment and the 1866 Act, the jurisdiction they are talking about is the complete or political jurisdiction, not this partial or territorial jurisdiction.

J. Craig Williams: Let me jump in here for a second and just ask a quick question. How does a child born in the United States to other than a diplomat or a foreign army or so forth, become subject to the jurisdiction of a foreign power?

Dr. John C. Eastman: Through his parents or her parents. Just like when I — if I have a child born in France, they are American citizens by virtue of their parents and not French citizens. This is by far the overwhelming basis for citizenship in international law. Of course, no baby consents to be part of any political regime. They consent through the consent of their parents and they owe allegiance through the allegiance of their parents.

So were these scant comments that I am kind of mining the voluminous records for? No, when the Supreme Court first dealt with this in a case in 1872 called Slaughterhouse, it was dealing with the Privileges and Immunities Clause, not the Citizenship Clause, but in the course of its opinion it says, the phrase was designed obviously to establish the citizenship of the Negro, that’s a direct quote. And the phrase subject to the jurisdiction was intended to exclude from its operation children of ministers and consuls, diplomatic counterpart, and citizens or subjects of foreign states born within the United States.

So here we have got the authors of the Fourteenth Amendment, the principle sponsors of it, the Supreme Court itself, and just to add one more piece of this to get all of the relevant evidence from the time, the leading constitutional treatise writer of the day, Thomas Cooley, says exactly the same thing. So that’s I think the better argument for what the original understanding was.

J. Craig Williams: Let me ask you my circumstances, my great grandparents emigrated from Wales in 1896. So they would have been subject to the Fourteenth Amendment. So my grandparents were then born here, my grandmother was born in the United States, in Pennsylvania. My father was born in Pennsylvania and I was born in Massachusetts. But given your interpretation, my grandmother, because she was born in the United States to a non-US citizen is not a citizen and so, is it therefore I am not a citizen?

Dr. John C. Eastman: No, see, I didn’t say noncitizen. Had they taken up domicile here or were your great-grandparents merely, to use the language of the day, temporary sojourners, were they here as mere visitors or had day with our permission and consent taken up a permanent lawful domicile here in the United States, what we would today call lawful permanent residents, although we don’t get that phrase and the legal apparatus?

J. Craig Williams: I believe the latter is true, but let’s just assume for the sake of argument the former that they were just simply visiting from Wales?

Dr. John C. Eastman: Then they were just simply visiting from Wales and their children are not citizens under the Fourteenth Amendment because they were still Welsh subjects by virtue of your grandmother’s parents.

Now, if at some point they take up permanent residency here, both your great-grandparents and then your grandmother and then they become lawful permanent residents, then their children will become citizens by virtue of the Fourteenth Amendment. But if they are just temporary visitors —

J. Craig Williams: So all the way down then and I shouldn’t have a US passport.

Margaret Stock: That’s right and neither should Donald Trump.

Dr. John C. Eastman: Well, no, because they weren’t temporary visitors and neither was Donald Trump. I mean that’s just silly. One of his parents was a citizen and that’s sufficient because they are subject to the jurisdiction through either of the parents to the United States.

The issue is whether people who are just here on a short-term temporary visitor visa or not here lawfully at all are able to demand membership in the body politic without our consent.

J. Craig Williams: Let’s throw it over to Professor Stock for just a moment. What’s the counterargument to this?

Margaret Stock: Well, I mean the counterargument is kind of obvious. First there weren’t immigration regulations back that. In fact, the Constitution had created the first immigration regulation, if you will, when it barred the importation of slaves. And the slaves who were freed were what we call today humans trafficking victims, but they weren’t legal migrants to the United States. They were, if you will, when they were smuggled in, they were human trafficking victims, but unauthorized immigrants forced against their will to come to the United States and they were clearly covered by the Fourteenth Amendment.

John had talked earlier about the Civil Rights Act of 1866, but Congress changed the language and that’s really important. Congress in the Civil Rights Act said, not subject to any foreign power, but two years later in the Fourteenth Amendment, they didn’t use that language. They used different language. They said subject to the jurisdiction, and they were well aware how to deny citizenship to people with foreign allegiances and that’s not what they did. Instead, they focused on the person’s relationship with American law.

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John also talked about the debates. Well, during the debates over the Fourteenth Amendment, Senator Edgar Cowan of Pennsylvania objected to the Birthright Citizenship proposal and he said and I will quote him. “Is the child of a Gypsy born in Pennsylvania a citizen?” Now, I will just comment there, those are the sojourners, temporary sojourners that John is talking about.

He goes on and he says “is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?”

And Senator John Conness of California answered that the children of Chinese and gypsy aliens “shall be citizens” and he was entirely ready to accept the provision proposed in the constitutional amendment.

So they discussed these temporary sojourners and they concluded that they were going to be citizens under this language subject to jurisdiction.

John talked about the Slaughterhouse cases. Well, in Wong Kim Ark, an 1898 Supreme Court decision, the justices held that the Fourteenth Amendment affirms “the ancient and fundamental rule of citizenship by birth within the territory, including all children here born of resident aliens.”

Now, John says well, they didn’t mean to include people who didn’t have green cards, well, that’s not true. The courts have repeatedly acknowledged the citizenship of people who were born to temporary visitors.

Boris Johnson, the Mayor of London, recently renounced his American citizenship. He happened to have been born in America. He was only here temporarily as a child and yet years later the Internal Revenue Service still considered him to be an American citizen, was hitting him up for federal taxes. It’s something that made him quite angry, because he said he hadn’t been in America since he was a child and he was still required to pay income taxes to the United States Internal Revenue Service because he still held American citizenship since he had never renounced it.

A famous case in the United States Supreme Court in 1952 —

Dr. John C. Eastman: Let me weigh in because we are stacking up the errors of the record.

J. Craig Williams: And before you do Dr. Eastman, let me interrupt for just a moment because we need to take a quick break before we move on to our next segment. And we will hear a message from our sponsor and be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I am Craig Williams and we are joined by Dr. John C. Eastman, the Henry Salvatori Professor of Law & Community Service and former Dean at Chapman University’s Fowler School of Law, and attorney Margaret Stock from the Cascadia Cross Border Law Group out of Anchorage, Alaska. She is also a former law professor at the United States Military Academy at West Point New York.

Before the break we have been talking about Birthright Citizenship and how it all came into being and I interrupted Dr. Eastman, who I am sure wants to get his point across.

Dr. John C. Eastman: Well, there are so many really serious errors of the record that Professor Stock just cited. I really need to call them to attention. Let me start with the Chinese and Gypsy conversation between Cowan and Conness. What she didn’t include was the beginning of that conversation where Cowan says, are the gypsies and Chinese who are here to be treated better than mere sojourners? So he was distinguishing them from sojourners. He was not asking about mere sojourners. They were here lawfully and they were here permanently, which means they were like modernly lawful permanent residents or green card holders. They were not mere temporary visitors.

And it’s in response to that that Conness says, yes, they will be citizens. In other words, what we are doing is rejecting the notion that citizenship is going to be in any way tied to race or tied to national origin. Anybody that is here lawfully and permanently, who has become part of our body politic will be able to make citizens of their children if they are born here. That’s what the conversation was.

The case of Wong Kim Ark involved a lawful permanent resident of Chinese parents and the Supreme Court goes out of its way to focus on the fact that they were lawfully domiciled in the United States, and it’s just not true that the Supreme Court has ever held, ever held that the children of temporary visitors or the children of unlawful visitors, people who aren’t even authorized to be here in the first place are automatic citizens.

Now, I will agree that in the last half century the executive branch of the federal government has acted as if they were, but I absolutely disagree that that was the case for over a century from the Wong Kim Ark case. If it had been that anybody born on US soil was a citizen, then you don’t need the Indian Citizenship Act of 1924, which Congress offers citizenship by virtue of its naturalization power, not because they are automatic citizens under the Fourteenth Amendment.

(00:20:12)

You would have had lots of claims of children who had been born to guest workers in the roaring 20s who were expatriated or repatriated after the Great Depression hit, you would have lots of claims that they were citizens and couldn’t be forcibly deported. No such claims exist.

The same thing was true in the Bracero program. In fact, the passport office up until the late 1960s, if you were born on US soil that wasn’t sufficient to prove your citizenship to get a passport, you also had to show the status of your parents when you were born on US soil.

So it’s just not true that this thing has been well established for over 100 years. We have got no Supreme Court holding on the case. It deals with the children of temporary visitors or of unlawfully — people who are in the country unlawfully.

And the executive branch, we got a memo from Walter Dellinger in the Clinton administration in 1995 saying that anybody born here no matter the circumstance are going to be citizens. Well, you know, that’s the Clinton administration view. The current administration has a different view of that and I think we are going to get it tested in the courts.

J. Craig Williams: It does seem well-established that there is a significant disagreement about what Birthright Citizenship means, but let’s turn to the second aspect of this whole discussion, which is how does the Fourteenth Amendment get changed.

Dr. Eastman, is there a significant disagreement on whether or not this can be accomplished through an Executive Order?

Dr. John C. Eastman: Well, so two things, and I think Margaret will agree with me on this. It’s come to my attention that the passport office is issuing passports, which means they are deeming people citizens to the children of diplomats. If she is right, the Fourteenth Amendment at least means —

Margaret Stock: No, they don’t do that. They don’t do that.

Dr. John C. Eastman: Well, I have got somebody from the passport office that has told me that they do. So we will see whether that’s happening or not.

Margaret Stock: They may be confusing diplomats who don’t have immunity, like honorary consuls and people that are on the list of folks that don’t have immunity, but anybody who has got 22:08, they maintain a list. They do not allow them their passports. I know this because I have dealt with this.

Dr. John C. Eastman: If the passport office is indeed issuing such passports, it would be well within the president’s Executive Order.

J. Craig Williams: It can be solved with a FOIA request to the passport office.

Dr. John C. Eastman: That’s right. We can find out easily enough. But if they are issuing such passports, the presumption of the question, then the president would be well within his rights by Executive Order to tell them to quit offering passports to people who are ineligible for them.

But even beyond that, whether by Executive Order of the president or by Congress, Congress — if the Fourteenth Amendment sets a lower floor, as I have described it, people who are lawfully domiciled in the United States rather than temporary visitors or people who are unlawfully present at all, then Congress can certainly offer by statute its understanding of that phrase and the president as a coequal branch of government has not only the authority, but the obligation to take care that the laws be faithfully executed, to do the same until we get a settled meaning. I mean settled by the Supreme Court on whether it extends to temporary sojourners and people who are unlawfully present in the first place, then I think the other two branches ought to be weighing in on what their understanding of that Fourteenth Amendment is.

If we take a broader view of it, that anybody born here, no matter the circumstance, the consequences for birth tourism, for illegal immigrations, magnet, what have you, are rather dramatic and a massive take away of power from Congress to settle the basic policy judgments over our naturalization policy.

Margaret Stock: Well, Congress has spoken and Congress passed several statutes enforcing the Fourteenth Amendment. There is one particularly that I am very familiar with because I live in Alaska. It’s 28 United States Code §1404 and it says anybody born in Alaska is an American citizen. They actually took out the subject to the jurisdiction language in the Alaska statute.

There is a similar one for Hawaii. There is one for the whole United States, and these have been consistently interpreted to include everybody born except for diplomats’ kids, everybody born within the geographic boundaries of the United States. The passport agency does not ask about parents, they never have, other than to figure out what the names of your parents are; you have to give them a birth certificate to show you are born in America, but they don’t check the immigration status of your parents before issuing a passport, with the limited exception of the diplomats’ kids, and they never have.

J. Craig Williams: Let me ask a quick question here. Would immigration turn — let’s assume that there is birthright tourism and people are going to start coming to the United States, let’s assume a person walks up to the immigration control at the border, through landing at an airport walks in and says I am here to have a baby, so my baby can be born in the United States, what is the appropriate response of the immigration officer at that point?

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Margaret Stock: Well, the immigration officers will kick them out if they tell them that. It’s going to depend on their visa. But if they have a visitor’s visa, that’s not a reason to come into the United States on a visitor visa. So they can turn them around and send them home.

Dr. John C. Eastman: They can. They are often not doing that, that’s why we have a whole tourism industry, massive amount of Russians giving birth to children on birth tourism package plans in Miami, a lot of people from Southeast Asian countries doing the same thing in Los Angeles.

But I want to go back to something else. Margaret said that the passport office has never asked about the status of parents, that’s just patently not true. Until 1966 they had two applications; one for born outside the United States and another for born inside the United States. And the regulations dealing with those born in the United States specifically asked for the status of the parents. Where was your father born, what was his status? That changed in 1966. It’s in the regulations and you can look it up in the Code of Federal Regulations.

That change occurred after the 1965 Immigration Statute, but it’s not true that the passport office never asked about the status of the parents for people who were born here. And the point of that is, those questions would have been unnecessary if Margaret’s interpretation of the Fourteenth Amendment had been in place at the time and yet it didn’t happen until the late 1960s.

J. Craig Williams: What are the documents that establish citizenship? At the most when I was a child I had a birth certificate and a Social Security card and then as I got older and I started to travel I got a passport and a driver’s license. What do you need?

Margaret Stock: All you need if you are born in America is your birth certificate, that’s it.

Dr. John C. Eastman: Since 1966 that’s been the regulation. Prior to 1966, you had to have a birth certificate, because we didn’t have extensive birth certificate in the early part of the century, you had to have a baptismal certificate from the church or what have you, but you also had to demonstrate the nature, the status of your parents, that was part of the regulations for the application for a passport, which required you to be a citizen, in order to qualify.

For those who were born here, whole set of different regulations applied for people who were born abroad, but for the people who were born here merely demonstrating that you had a birth certificate, showing you were born in Baton Rouge, Louisiana or whatever was not sufficient, that regulation didn’t change until 1966.

Margaret Stock: It was sufficient to get a passport. It didn’t matter what your parents’ status was, they would still give you a passport if you were born in America, unless you were the child of a diplomat.

Dr. John C. Eastman: You had the questions, they just asked the questions needlessly, that’s not what bureaucracies usually do. They ask those questions because the understanding of the time was subject to the jurisdiction, meant as the Supreme Court said it meant, subject to the more political jurisdiction, not the mere partial or territorial jurisdiction.

Margaret Stock: Right. Well, I think you would have to find the person who actually got denied a passport and there aren’t any such people who ever got denied a passport.

J. Craig Williams: Let me interrupt you one more time. It looks like we have just about reached the end of our program, so I would like to take this moment to ask our guests to share their final thoughts and wrap up their conversation and points, and if they would like at the end of that, then share their contact information.

So since I interrupted you Professor Stock, let’s turn to you.

Margaret Stock: Okay. Well, thank you so much. I think it’s a settled meaning and there is no historical case of somebody being denied a passport after the Fourteenth Amendment was passed on the grounds that their parents held the wrong status, other than the children of diplomats and the Indian tribes are a special case because they were considered not subject to the jurisdiction until the 1924 Act passed granting them citizenship.

But the bottom line is this has been the rule in America for more than 100 years. If we want to overturn it and change it, we are going to need to pass an amendment to the Constitution.

J. Craig Williams: Great. And how can our listeners find you if they want to reach out to you?

Margaret Stock: You can find me at my firm’s website, which is www.cascadialawalaska.com.

J. Craig Williams: Great. Thank you. And Dr. Eastman, your final thoughts.

Dr. John C. Eastman: My final thoughts, the Constitution has two elements, the second element subject to the jurisdiction meant complete and political jurisdiction, not the mere partial jurisdiction, such as is consistent with visitors. And those that wrote and ratified it really did not intend to offer citizenship to temporary visitors in the United States and certainly never even contemplated giving citizenship to the children of illegal immigrants who had no lawful right to be here in the first place.

That floor certainly as a matter of policy Congress can choose to go above as far as they want, as it did with the Alaska Statute, which relies on the Naturalization Act, not the Fourteenth Amendment. Anybody born in Alaska without being subject to the jurisdiction is going to be citizens.

Congress certainly has that authority, but the notion that in 1868 we settled the question forevermore about the children of unlawful immigrants being automatic citizens, when that was not even an issue and we have taken that power away from Congress to make basic policy judgments about what’s best for the United States of America seems to be a very big broad interpretation of the Constitution that simply is not warranted by the historical record.

J. Craig Williams: All right, thank you. And Dr. Eastman, how can our listeners find you at Chapman?

(00:29:56)

Dr. John C. Eastman: Well, the best place to reach me on this subject is with my Claremont Institute affiliation, claremont.org, and we have a whole page up there of all of the debates pro and con on this issue. Margaret and I have been debating it as I have with a number of other people around the country for years now, and so we have put up both sides of the debate there so people can really roll up their sleeves and get enmeshed in it if they want.

J. Craig Williams: Thank you very much. And for our non-California listeners, Claremont is spelled C-L-A-R-E-M-O-N-T.

Great. Well, that brings us to the end of our program. If you liked what you heard today, please rate us in Apple Podcasts. You can also visit us at legaltalknetwork.com, where you can leave a comment on today’s show and sign up for our newsletter.

I am Craig Williams, thanks for listening. Join us next time for another great legal topic.

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