Eastman is wrong: the Constitution does guarantee birthright citizenship

John Eastman has taken me to task for what he calls my misreading of the language and history of the 14th Amendment in a recent op-ed I wrote for The Wall Street Journal. We’ve known each other for decades, and I consider Eastman a friend, but he’s simply wrong in thinking the children born to illegal immigrants in the United States are not entitled to birthright citizenship under the 14th Amendment.

The 14th Amendment says in plain English: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” But Eastman and a handful of immigration restrictionists argue that that Amendment excludes children born to illegal immigrants because they are not “subject to the jurisdiction” of the United States.

On its face, that position is absurd and would mean that illegal immigrants—like diplomats—could not be prosecuted for crimes they commit, since they have not subjected themselves to the jurisdiction of the United States. In trying to square this circle, Eastman suggests that the framers of the 14th Amendment had in mind a different interpretation of what it meant to be “subject to the jurisdiction” of the United States than common sense dictates. But his interpretation has been thoroughly refuted by one of the nation’s leading authorities on the history of the 14th Amendment, Professor Garrett Epps. As Epps demonstrates, Eastman misrepresents the Congressional debate on the 14th Amendment and misconstrues the groups excluded from birthright citizenship.

The phrase “and subject to the jurisdiction thereof” was added to the 14th Amendment to exclude two categories of persons: diplomats and Indians. Since diplomats and Indians were not subject to the laws of the United States, they could not be sued or prosecuted. Diplomats have always enjoyed such immunity, but Indians were a special case because they were members of tribes that enjoyed sovereign status within the United States. When Eastman quotes Sen. Trumbull as construing the jurisdiction phrase to mean subject to the “complete” jurisdiction “[n]ot owing allegiance to any body else,” he noticeably neglects to mention that he took the quotations from a colloquy involving the sole question of whether the disputed language adequately excluded Indians: “Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction,” offered Trumbull in response to a colleague.

On the other hand, Trumbull and the Amendment’s sponsors (among whom, contrary to Eastman’s assertion, he was not) were quite amenable to granting citizenship to a group that an opponent of the Amendment described as: “[P]eople who invade her borders; who owe to her no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own—an imperium in imperio; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him, but, on the other hand, have no homes, pretend to own no land, live nowhere, settle as trespassers wherever they go.” The diatribe (which some might invoke today against illegal aliens) was aimed at Gypsies. When asked by Sen. Edgar Cowan whether the 14th Amendment would grant citizenship to “Gypsies born in this country,” Trumbull replied, succinctly, “Undoubtedly.”

But it isn’t just his 14th Amendment history that Eastman gets wrong. He misconstrues the facts in the Supreme Court case United States v. Wong Kim Ark (1898). “Wong Kim Ark was born on U.S. soil to the parents of lawful, permanent residents [italics added] of the United States,” he says. In fact, there was no category of “lawful, permanent residents” then as there is today. Wong’s parents were aliens—neither legal nor illegal, since there were no restrictions on immigration at the time of his birth. Nor did the Court base its ruling on the parents’ efforts to do “everything they could to subject themselves to the complete jurisdiction of the United States,” as Eastman contends. Rather, all parties in the case agreed that Wong’s parents were “subjects of the Emperor of China” at the time of his birth, but the Court rested its decision on the fact that they were “domiciled” in the city of San Francisco and were by, common understanding and tradition, subject to the laws of the United States.

Eastman is correct that the Court has not recently taken a case where the issue being litigated is whether “a child born to someone here only temporarily, or even illegally, would qualify for automatic citizenship.” However, in cases in which the citizenship of a person born in those circumstances was a factor, the Court has treated the matter as settled law. In INS v. Rios Pineda (1985), Justice Byron White noted for a unanimous Court that “the respondent wife [an illegal alien] had given birth to a child, who, born in the United States, was a citizen of this country.” Similarly, in Hamdi v. Rumsfeld (2004) the question of Taliban fighter Yaser Hamdi’s U.S. citizenship was not disputed, even by dissenting Justice Antonin Scalia, who called Hamdi a “presumed citizen” even though his Saudi parents were on temporary visas at the time of his birth in Louisiana. Especially telling in Eastman’s failure to mention Hamdi is his own amicus brief in the case, which makes the same arguments against birthright citizenship offered here and which the Justices chose to ignore.

Linda Chavez is chairman of the Center for Equal Opportunity in Falls Church, Va.

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