In two prior posts on the Liberty Law Blog, I argued 1) for a large amount of legal immigration and 2) that the original meaning of the Fourteenth Amendment confers birthright citizenship, even on the children of illegal immigrants.
Here, though, I want to present a nonoriginalist interpretation of the Fourteenth Amendment's Citizenship Clause – one that would deny birthright citizenship to the children of illegal aliens. My principal aim in this exercise is to make a point about nonoriginalism: while many advocates of nonoriginalism seem to believe that nonoriginalism only leads to more rights of the type that they like, this is not true. While most advocates of nonoriginalism probably favor birthright citizenship, nonoriginalists should see that the original meaning here supports a result they like, whereas nonoriginalism allows a strong argument for a result they dislike. (It is also worth noting to originalists that nonoriginalism may sometimes support results they like.)
While the language “subject to the jurisdiction thereof” might have the original meaning as I mentioned in my previous post, it could also be understood as meaning “subject to the exclusive jurisdiction of the United States.” Under international law at the time of the Fourteenth Amendment, states had jurisdiction over their citizens anywhere in the world, but of noncitizens mainly in their own territories. Thus, the children of solely American citizens born in the United States are exclusively subject to the jurisdiction of the United States. No other country has jurisdiction over them. By contrast, the children of foreign citizens, who were typically citizens of their parents’ country of birth, would not be subject to the exclusive jurisdiction of the United States, because they would be subject to the jurisdiction of their parents’ home country. This interpretation, then, has the consequence that the children of foreign citizens, both legal and illegal, would not be citizens at birth under the Fourteenth Amendment.
This reading of the text is by no means perfect. The biggest problem is that the text does not say “exclusive jurisdiction,” only “jurisdiction.” But that is not such a big problem for a nonoriginalist. A term like “jurisdiction” might easily be understood to refer to “exclusive jurisdiction.” The nonoriginalist would argue that sometimes people use terms loosely. For example, we sometimes use the term “property” even though we mean “real property.” While an originalist (especially a textualist originalist) would regard this loose construction as seriously problematic, a nonoriginalist would often not.
The interpretation I offer here is similar to the (originalist) view of John Eastman, but I prefer it to Eastman's. See the bottom half of this post.
In my next post, I will present some of the nonoriginalist arguments that can be made in favor of this interpretation.
Posted at 8:01 AM