The originalist case against birthright citizenship

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The American people are being told by the political class that there is nothing they can do to prevent future waves of illegal immigrants from coming here, unilaterally declaring political and legal jurisdiction, and securing citizenship for their children. We are told that there is no recourse through our elected representatives to prevent illegal immigrants from gaining a legal foothold in this country, all because of a footnote from the most radical anti-originalist justice of this century, William Brennan Jr.

If you are scratching your head wondering how our own Constitution can be used as a suicide pact against us by foreign countries, you are not missing anything. This irrational sentiment expressed by a number of conservative and liberal pundits alike, in fact, undermines the very fabric of the social contract, popular sovereignty, and the republican form of government established by the preamble of the Declaration of Independence and the Constitution.

Mandated birthright citizenship even for legal immigrants is a big stretch

Let’s put aside everything we believe as conservatives for a moment and take the activist ruling of Wong Kim Ark (169 U.S. 649 (1898)) as impregnable constitutional law. As such, the Fourteenth Amendment would compel Congress and the executive agencies to grant citizenship to all children of legal immigrants. Although we all agree as a matter of policy that it is a good idea to grant children born to legal permanent residents citizenship, by accepting the 1898 court decision as settled law, thereby enshrining birthright citizenship into our Constitution, we’d have to swallow the following ridiculous notions:

> We’d be adopting one-directional stare decisis of an activist court that overturned two previous court decisions: the 1873 Slaughterhouse Cases and Elk v. Wilkins (1884). In those cases, the Supreme Court made it clear that the original intent of the Fourteenth Amendment was primarily to grant equal rights to freed black slaves and that the phrase “subject to the jurisdiction thereof” required that the petitioner for citizenship be “completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” These cases excluded children born to foreign diplomats and American Indians and were quite clear that the meaning of the Fourteenth Amendment would not include all children of immigrants – most of whom would have been covered by less political jurisdiction than even those born on Indian reservations, which were partially under U.S. jurisdiction. (See more from Prof. John Eastman at NRO on defining jurisdiction.)

> We’d be overturning the most logical meaning of the text of the citizenship clause, rendering the second phrase all but superfluous.

> We’d be ignoring the intent of the drafters of this amendment, who clearly had no intention of mandating birthright citizenship for all immigrants (see more in the Eastman article). While originalists like to focus on text, in this case the text fits in exactly with the intent of the drafters, as demonstrated by the Senate floor debate.

> We’d be adopting the Revolutionary-era feudal system of English Common Law rooted in the fact that men are subjects of the state by virtue of being born on the soil. This is antithetical to the consent-based notion of citizenship expressed by our Founders. Although many of our laws are built upon the English Common Law, this certainly was not one of them, and this segregation-era court was incorporating it into American law, ironically, at a time when England was abandoning feudalism. As Thomas Jefferson wrote precisely in a discussion on immigration in Notes on the State of Virginia (Query 8, 211), our Constitution is a composition of the “freest principles of the English constitution.”

> By adopting jus soli as a constitutional mandate (not just policy) for automatic citizenship based on soil, and not jus sanguinis – right of blood – all children born to American citizens abroad would not automatically be citizens, as noted by then-Chief Justice Fuller in his dissent in Wong Kim Ark.

> Fuller further noted in his masterful dissent that by mandating automatic citizenship for all children of immigrants – no matter the circumstances – the Fourteenth Amendment would have the power “to cut off the legislative power from dealing with the subject.” Article 1 Section 8 of the Constitution grants Congress plenary power over naturalizations. Fuller observes that “the right of a nation to expel or deport foreigners who have not been naturalized or taken any steps toward becoming citizens of a country is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.”

Read the rest from Daniel Horowitz HERE.

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