July 22, 2018
expected the reaction to a recent op-ed I published calling for the end of birthright citizenship to be cantankerous. I even expected it to be hysterical—from the Left. I did not expect self-described “conservatives” to be just as hysterical as the Left, and to use precisely the same terms. “Nativist.” “Xenophobe.” “Bigot.” “Racist.” “White nationalist.” “White supremacist.”
One point I’ve been making for a while is that one faction of “conservatism”—let’s call it the anti-Trump wing, although the phenomenon long predates Trump—sounds and acts with every passing year more like a “conservative” subdivision of the Left. Like the Left, they don’t want to debate; they want to call those they disagree with evil. For what are those epithets supposed to mean, if not “evil”?
Whether or not to have birthright citizenship for the children of noncitizens is one such fundamentally political question. But like so many other political questions, this one is ruled out of bounds by scholars, lawyers, experts, pundits, and professional moralists.
The American people did not willingly, knowingly, or politically adopt birthright citizenship. They were maneuvered into it by the Left and by the Left-allied judiciary. They’ve never debated it or voted on it. They’ve simply been told that it’s required by the Constitution.
Polling shows that a sizable number of Americans—though not a majority—support ending birthright citizenship. Were the nation to hold an honest debate, those numbers might rise (indeed, I’m confident they would). Of course, that’s precisely what the liberals and their allies on the “conservative Left” fear. It’s not only their legal arguments that are weak; their political arguments are even weaker. Since they know they would lose the debate, they are desperate not to have it. Which is why they demonize anyone who tries to raise it.
The most allegedly devastating response to what I wrote accuses me of changing a quote, and by doing so changing the meaning of the quote in ways that were not just self-serving but wholly contrary to the original meaning of the quote. This argument (cited by all the conservatives) is offered by a liberal scholar who purports to be sticking up for the original meaning of the 14th Amendment.
Part of me wants to be both surprised and heartened to read a liberal scholar stand up for originalism. I don’t recall ever seeing that in my lifetime. Maybe the conservative movement has made more headway than I thought!
At any rate, I did add a bracketed word to the quote, for clarity. This is called “a lie.” Judge for yourself.
Here is the original quote, from Senator Jacob Howard. Referring to the citizenship clause of the 14th Amendment, he says:
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
Here is how I quoted it. I said 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.
The charge is that the added “or” completely changes the meaning. The intent, it is said, is to exclude from citizenship only those “who belong to the families of ambassadors or foreign ministers.”
But if that is what was meant, the language would have to read “who are foreigners OR aliens who belong …” To get to the meaning insisted upon, one must not merely add “or” after foreigners, one must also delete both commas. Getting rid of just the first one will not do.
But that’s not what’s in the text. What is there is a list missing its final conjunction. Apples, oranges, bananas. Remembering my high school English, I simply added one for the reader. Apples, oranges, [or] bananas.
It is necessary to note that this quote (and most of those that follow) come from the Congressional Globe, an ancestor to the Congressional Record, which records Congressional debates. Unless otherwise noted, all the quotes that follow are from the Globe’s account of the Senate the debate on the 14th Amendment, May 30th, 1866. They do not purport to be exact transcripts, especially with regard to punctuation. So to be certain we really know what Senator Howard was trying to say, we have to read the whole debate and place his comment in context.
Senator Trumbull says that “subject to the jurisdiction” means:
not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States. [Emphasis added.]*
Senator Trumbull does not say “Not owing allegiance to a foreign government for whom one serves as an ambassador or minister.” He plainly says “anybody else,” i.e., any foreign nation or tribe whatsoever. To hammer the point home, he continues: “and being subject to the complete jurisdiction of the United States.” To be “subject to the complete jurisdiction of the United States” is to owe allegiance to no other country or tribe.
The word “complete” is important. The authors of the amendment affirmed that all persons present in U.S. territory are subject to U.S. law; that is, both obligated to obey it and entitled to its protection for person and property. This is the partial jurisdiction that any sovereign state claims over aliens on its soil. But, they continued, that does not entitle anyone to citizenship. Senator Edgar Cowan of Pennsylvania clarifies:
If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. You cannot murder him with impunity. It is murder to kill him, the same as it is to kill another man. You cannot commit assault and battery on him, I apprehend. He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word.
Senator Howard further clarified the meaning of the jurisdiction clause, endorsing the interpretation of Senator Trumbull:
I concur entirely with the honorable Senator from Illinois, in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
Quite obviously—and by definition—the “constitutional power of the United States” is not “coextensive” with foreign nations. Also by definition, the “same jurisdiction in extent and quality as applies to every citizen of the United States now” cannot apply to foreigners. To claim otherwise is to claim that U.S. law applies to foreigners even when they are residing in their own countries! It is to claim, in effect, that U.S. law rules the world. Which is absurd.
Senator Reverdy Johnson of Maryland added yet another supportive, clarifying comment:
Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States. [Emphasis added.]
He says the amendment defines citizens as “all persons born in the United States and not subject to some foreign Power.” Not merely not the children of ambassadors, but “not subject to some foreign power.” They also must be “born of parents who at the time were subject to the authority of the United States.”
To further clarify the meaning of the proposed amendment, Senator Johnson read the first clause of the Civil Rights Act of 1866, passed earlier in the same year by the same Congress. That law’s first clause reads:
all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens. [Emphasis added.]
There are thus two criteria for citizenship: being “born in the United States” and “not subject to any foreign power.” Just the first doesn’t cut it. Language doesn’t get any plainer than that.
If we need further proof of what this language means and was intended to mean, we have this from Representative John Bingham of Ohio, who has been called “the father of the 14th Amendment.” In an earlier debate, explaining to the House the purpose and meaning of the citizenship clause of the 1866 Civil Rights Act, he said:
I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. [Emphasis added.]
“[O]f parents not owing allegiance to any foreign sovereignty.” Again, not just to a foreign embassy, but to “any foreign sovereignty.”
Therefore, “subject to the jurisdiction thereof” clearly means exactly what Senator Trumbull said it means: “not owing allegiance to anybody else.” A foreigner clearly owes allegiance to somebody else: the country in which he is a citizen or subject.
What about the Indian Tribes?
Objectors to my argument cite the question of Indians, not realizing that it undermines rather than strengthens their case. I quote one of my critics in full to avoid—probably futilely—being again accused of lying:
Diplomats and their children had immunity under international law; American Indian tribes were governed by treaties and treated as separate sovereigns. Every other individual born in the U.S.—to citizens and foreigners alike—is “subject to the jurisdiction” of the federal government. Over and over again during floor debate, the drafters and supporters of the 14th Amendment explained that they intended these two groups—and only these groups—to be excluded from birthright citizenship.” [Emphasis in the original.]
But the very quote from Senator Howard this same critic misused to call me a liar undercuts this assertion. Look at it again:
This [citizenship guarantee] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. [Emphasis added.]
Notice what’s missing there? Do you see “Indian tribes”? I don’t.
If Indians are one of “only” two groups not entitled to birthright citizenship, then they should be there, right? There are only two ways to read the above quote. The first is that Indians are included among “every other class of persons,” in which case they are citizens under the 14th amendment. But the alleged refutation of my argument absolutely depends on Indians being one of “only” two groups who are not entitled to birthright citizenship. If they are to be counted among “every other class of persons,” then they are citizens whose children are entitled to birthright citizenship under the 14th amendment.
The other possibility is that Senator Howard regards Indians as belonging to the class “foreigners, aliens.” Otherwise, Indians are not on Senator Howard’s list, a list which the Senator himself says is exhaustive.
Indeed, we know this is the answer because Senator Howard told us. A bit later in the same debate, he explicitly categorizes Indians as foreigners:
Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our jurisprudence, as being quasi foreign nations. [Emphasis in the original.]
The argument against me hinges reading the earlier quote as inextricably linking the clause “foreigners, aliens” to the next clause, which reads “who belong to the families of ambassadors or foreign ministers.” In other words, this line of attack demands that the quote be interpreted to mean that the only “foreigners” and “aliens” meant are the relatives of ambassadors and ministers. But that absolutely cannot be if Indians are among the “only” two groups not entitled to birthright citizenship. If that is the case, then they must have been counted as another subset of “foreigners”—which Senator Howard explicitly affirms. If Indians are among the class “foreigners, aliens” then clearly those two words were not meant to specify only the relatives of ambassadors and ministers but other foreigners as well—which the other quotes I cited explicitly affirm. The only way around this point is to torture the text even further and assert that Indians are not merely the only foreigners meant, but also that the only Indians who don’t get birthright citizenship are the relatives of Indian ambassadors.
Senator Howard continues by noting that the fact that “we make treaties” with another people is, in and of itself, proof that “they are not subject to our jurisdiction. If they were, we would not make treaties with them.” We, of course, make treaties with foreign nations as well as with Indian tribes. Indeed, as the Senator had already explained, we make treaties with Indian tribes because we treat them as foreign nations.
In sum, to sustain the line of attack being used against me, one must insist on three things. First that only the first quote from Senator Howard is authoritative in interpreting the 14th Amendment. Second, that the quote means only what my critics say it means and is open to no other possible interpretation. Third, that all the other quotes cited which clearly state that the framers of the Amendment equated “subject to the jurisdiction” with “not owing allegiance to anybody else” are somehow irrelevant. Even though they were spoken in the same debate—some of them to express agreement with Senator Howard!
The Original Purpose of the 14th Amendment
Perhaps one reason people are so confused about the meaning of the 14th Amendment is because they have forgotten its fundamental purpose, and the context of the debate.
The purpose of the 14th Amendment was to settle forever the question of the citizenship status of freed slaves and of other free blacks then living in America. That was also the core purpose of the Civil Rights Act of 1866. But some who wanted to continue to deny citizenship to free blacks cited the Dred Scott decision as superseding that Act. A statute was deemed to be insufficient, whereas a Constitutional Amendment would supersede all that came before.
Senator Howard says of the amendment’s purpose that it:
settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
Surely Senator Howard did not refer to the citizenship of the children of foreign diplomats as a “great question.” Large or small, that question had not only not “long been a great desideratum in the jurisprudence and legislation of this country,” it had hardly come up at all.
The bedeviling citizenship question of the age was how to treat freedmen. The “great desideratum” clearly refers to the Dred Scott decision, its fallout that helped bring on the Civil War, and the ensuing post-bellum controversy over whether that ruling allowed southern states to deny citizenship to free blacks. The 14th Amendment ends the controversy. Dred Scott is overturned. Federal citizenship supersedes and determines state citizenship. No state may deny citizenship to blacks, who were unquestionably “born … in the United States” and “subject to the jurisdiction thereof.” (For the quote-checkers, the ellipsed words are “or naturalized,” which clearly do not apply to freed slaves.)
In the debate, we find much discussion of Indians because the original draft of the amendment left their status unclear. That original draft did not include the clause “subject to the jurisdiction thereof.” It came to be added because some argued that without that clause, the amendment would automatically grant citizenship to all Indians, who were unquestionably “born in the United States”—that is, in the physical territory of the United States—but who were considered non-citizens because their allegiance was to their tribes and not to the United States. The clause was added to equate Indians with foreigners, who were already understood to be non-citizens. Indeed, inherent in the very concept of citizenship is the fact foreigners are not citizens!
There is nothing whatsoever in the debate that explicitly states, implies, or contextually suggests that the framers of the 14th Amendment meant to grant birthright citizenship to the children of illegal immigrants. They don’t talk about illegal immigration much because on that question, there was no need for debate. The children of persons “subject to any foreign power,” “owing allegiance to anybody else” were—all agreed and the law already declared—not citizens.
When they do talk about immigration—particularly Senator Cowan—they express concern that the amendment be carefully drafted so as not to allow or provoke unchecked immigration by offering too broad a definition of citizenship. (As an aside, I note that Senator Cowen’s long speech is quite triggering to our ears in 2018. It’s amusing to be called “racist” by people whose arguments rest on the views of men whose words I blush to read.)
To return to an earlier point, my encouragement at seeing a liberal defend originalism was clearly misplaced. First, because he did so incompetently. Second, because he did so insincerely. Indeed, his incompetence was in service to his insincerity. The goal, as ever for liberal jurisprudence, is to arrive at the desired policy result. If an originalist interpretation can get the liberal there, he will use it. If he can conjure a false originalist interpretation, he will use that—especially in a debate with an actual originalist. If no appeal to originalism, true or false, is possible, he will appeal to precedent and call it binding for all time. And if the appeal to precedent turns out to be impossible, he will invoke the “living Constitution.”
Does anyone believe that, for the Left, this argument is really about constitutional interpretation? No matter what I or anyone said, would anyone on the Left ever concede that birthright citizenship might not be constitutionally required, let alone prudent? Of course not.
One of my critics on the “conservative” Left who once claimed to be an originalist illustrates the point. He says that the simple fact of birthright citizenship being “age-old” makes it somehow sacrosanct. There is not even a pretended appeal to the Constitution. Beyond this, someone with a philosophic education ought to know that it is a mistake to identify the old with the good. Even if it were not, his argument still fails on its own terms. Before the Wong Kim Ark decision of 1898, America did not have birthright citizenship. Hence the true “age-old” practice—going back to the beginning of the republic—is not to have it. If the old is the good, why is the younger birthright citizenship practice sacrosanct but the prior, and far-older practice of granting citizenship only to the children of citizens and lawful immigrants bad?
This, ladies and gentlemen, is the quality of “conservative” argument in 2018.
Current and Past Birthright Citizens
I have been accused of wanting to strip citizenship from those already born to illegal immigrants and thus already granted citizenship. Of course, I said nothing of the kind, nor does my argument demand any such conclusion. We may grant that our current understanding of birthright citizenship is a mistake and correct that mistake without retroactively stripping anyone of citizenship. Indeed, I believe that the American people in their generosity would support exactly such a measure. Correct the issue going forward. Make clear to the world that the United States will no longer grant birthright citizenship to the children of non-citizen illegal immigrants, birth tourists, or people here on temporary work or student visas. The citizenship of those already born would forever be honored—even enshrined into law if necessary.
This is a reasonable way forward. The alternative—illegal immigration, population growth, and all their attendant problems forever—is not sustainable. Nor is it—once again—in the interests of the current citizens of the United States, including those born to illegal immigrant parents.
Birthright citizenship—as I and others have argued—is a magnet for illegal immigration, an ongoing problem that worsens many of our other problems. The longer we continue the practice, the more illegal immigration we will get, with all its ensuing effects. As I have argued elsewhere, the United States does not need more people. We need to do a better job meeting the needs of the citizens we already have.
Birthright citizenship also undermines the consent-based social compact, which is the basis for the legitimacy of the U.S. government and for all our law, constitutional and otherwise. If we don’t have a social compact, we don’t have a country. A social compact that can be joined contrary to the will of its existing members is an impossibility, a self-contradiction.
It’s no wonder, then, that only around 30 countries out of nearly 200 practice birthright citizenship. The highest accounting that I have seen says 33. There are 197 countries in the world (193 UN members, two observers, and two non-members). Thus 83% of the world’s nations do not allow birthright citizenship. Those countries that do have a combined population of 958 million (in all cases, rounding estimates up in order not to be accused of fudging the numbers in my direction). According to the UN, the world population is today 7.6 billion. Our “conservatives” insist that opposition to birthright citizenship is “nativist, xenophobic, bigoted, racist, white nationalist, white supremacist” and more. This means that 6.642 billion of the world’s people (give or take) must also be “nativist, xenophobic, bigoted, racist, white nationalist, and white supremacist.” The latter two would truly be something, given how few of those people are white.
Clarity Over Agreement
It’s an ugly thing to hear and read the worst of these epithets from ostensible allies. But of course, those hurling these calumnies are in no sense allies. That was clear in 2016, if not before, and it’s even clearer now. Clarity is good. Let’s all make clear where we stand on the issues of the day and in relation with others in the big tent we used to call “the Conservative Movement.”
It’s clear to me that those who use this kind of language are leftists—leftists in rhetoric and in philosophy. These epithets were hurled in response to a column that mentions race only in the context of stating that it was necessary and just that the United States firmly declare that freed black slaves were citizens.
A noted scholar once remarked, about the political swirl of the 1960s and ’70s, that he was tired of being fired upon by his friends. It made more sense to arrange things so that the people shooting at him were his enemies. Some kind of intellectual realignment is similarly necessary today. Those who nominally gather together in the big tent cannot continue to do so, however loosely, on current terms. Continually being knifed in the back by ostensible allies is not a sustainable situation.
I see three possibilities. First, the knifers could stop being fratricidal, stop being leftist and learn something about the true basis for conservative principles, so that they stop becoming hysterical over silly errors arising from their own false understanding. Second, one side or the other will take control of the tent and kick the others out. Third, all this continued acrimony might destroy the tent, causing us all to scatter and regroup in more stable and like-minded coalitions.
If the first possibility doesn’t pan out, I don’t know which side will end up owning the word “conservatism.” I’m not sure I even care. The word is now so tainted with error, imprudence, hubris, sanctimony, and failure that it might be better to let others keep it. I do know that change must come—and is coming.
*In the original version of this article, I mistakenly stated that the editors of my earlier op-ed had changed the attribution of a quote from Senator Lyman Trumbull to Senator Jacob Howard. In fact, the draft I submitted to the Washington Post incorrectly attributed that quote to Senator Howard and the Post's editors corrected the attribution to Trumbull. I regret making this error and apologize to the Post's editors.