Among the many subjects covered at the Republican presidential debate on Monday, the following from former Minnesota governor Tim Pawlenty caught my originalist ear:
PAWLENTY: … And, by the way, this issue of birthright citizenship again brings up the importance of appointing conservative justices. That result is because a U.S. Supreme Court determined that that right exists, notwithstanding language in the Constitution. I'm the only one up here — I believe I'm the only one up here — who's appointed solidly, reliably conservative appointees to the — to the court. [The full transcript is available here].
Presumably the Court decision he has in mind is United States v. Wong Kim Ark (1898), which held that children of legal immigrants, if born in the United States, are U.S. citizens. But Governor Pawlenty has some explaining to do if he thinks that result is contrary to “language in the Constitution.”
The Fourteenth Amendment, Section 1, says that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States ….” In ordinary legal language, children of immigrants (legal or illegal) are “subject to the jurisdiction” of the United States because the United States has, with minor inapplicable exceptions, jurisdiction (that is, sovereign authority) over all persons within its territory.
There are arguments that the Fourteenth Amendment doesn’t extend birthright citizenship to children of illegal aliens (see this congressional testimony by John Eastman, former Dean of Chapman University Law School), but they are a lot more complicated and tenuous than merely saying the Court’s decision was contrary to the Constitution’s language.
In a future post I’ll outline why I think the correct originalist analysis confirms the birthright citizenship of the children of immigrants, but for now my point is this: Republican candidates disputing birthright citizenship need to understand that they are fighting the Constitution’s plain language, and that their argument can’t be reduced to a soundbite. If you want examples of ways the Court has obviously departed from the Constitution’s text, birthright citizenship is not the place to look.
Posted at 7:45 PM