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Rethinking the birthright battle

The relevant sentence reads: “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 question is whether someone born in the United States to parents who are here illegally is a U.S. citizen. And the text says that the answer is yes, unless that baby is not “subject to the jurisdiction” of the United States.

Now, what possible argument can there be that this baby, when he is born - and, of course, as he grows up - is not subject to the jurisdiction of the United States? Is there anything that the United States cannot do with regard to him that it can do with regard to any other baby? The answer is no. Bear in mind that we are talking about the legal status of the baby, not the legal status of his parents.

The words “subject to the jurisdiction thereof” must mean something, and the natural reading is that this excludes children over whom the United States lacks its usual power. And - sure enough - the legislative history suggests that the words mean children of foreign diplomats. This makes semantic sense, since the practice of diplomatic immunity does indeed limit the extent to which they would be subject to U.S. laws. It might also have meant children born by foreigners who are part of hostile occupying forces or children born on Indian reservations - again, situations where the children themselves are not subject to the full force of U.S. law.

Conservatives would usually, and rightly, be suspicious of using a few ambiguous (at best) snippets of legislative history to advance a reading of a constitutional text that is contrary to its natural meaning. Therefore, there ought to be a strong presumption against any construction of the phrase “subject to the jurisdiction thereof” that is contrary to this natural meaning. Those who oppose birthright citizenship claim that the phrase has a second meaning, involving allegiance to the government and Lockean concepts of the consent of the governed. If this is what the founders meant, they could have, would have and should have said so in the text. They did not.

We should be especially suspicious of reading into the phrase such an esoteric meaning, since the words and the concept are not esoteric at all. The word “jurisdiction” appears many other times in the Constitution, and just where we would expect it - for example, three times in Article III (discussing federal courts) and twice in Article IV (discussing state powers). It also appears later in the same section of the 14th Amendment (no state shall “deny to any person within its jurisdiction the equal protection of the laws”). And the exact or nearly the exact phrase also appears in the 13th Amendment (forbidding slavery “within the United States, or any place subject to their jurisdiction”), and in the 18th Amendment (regarding intoxicating liquors in “the United States and all territory subject to the jurisdiction thereof…”). The use of the word “subject” in the Constitution likewise suggests nothing out of the ordinary in its meaning.

All of this supports a straightforward construction of the relevant words in the citizenship clause. The founders knew that the words appeared elsewhere; if they wanted them to mean something different here, they again could have, would have and should have used different and clearer words.

We should, finally, be suspicious of a reading of the clause that draws a distinction between legal and illegal immigrants, since that distinction did not exist in 1868. It is odd that some of those who oppose birthright citizenship try to use this fact in their favor, arguing that because illegal aliens did not exist in 1868, the Framers, if they were asked about it today, might not want the children of illegal aliens to be considered citizens of the United States. Well, maybe not, but the words they wrote cover them. We would not argue that because basketball players did not exist in 1868, we can’t know that the founders would have wanted their children to be considered citizens and therefore, children of basketball players can be precluded from claiming birthright citizenship if Congress now decides to exclude them.

If conservatives want to be taken seriously when they insist that Congress follow the text of the Constitution, they have to do so not only when it constrains congressional power in ways they like, such as health care, but also when it constrains congressional power in ways they might not like, such as birthright citizenship.

Roger Clegg is president and general counsel of the Center for Equal Opportunity.