Given the attention focused on birthright citizenship, I thought I would discuss my position. Overall, I am something of a moderate on the issue, taking what are regarded as both pro-immigration and anti-immigration positions.*
First, I believe that the original meaning of the 14th Amendment requires birthright citizenship largely for the reasons that Mike Ramsey has given.
Second, I believe there is a reasonably strong case against birthright citizenship based on a nonoriginalist, living Constitution approach. I present this position at greater length below but I do not adopt it since I am an originalist. But nonoriginalists who support birthright citizenship need to explain why they reject the argument I present below.
Third, as a normative or policy matter, I strongly favor a sensible and generous immigration system. I would allow many people to immigrate – but only those who come here legally and are likely to accept the basic values of our nation. I also believe we should be especially receptive to people who can make a valuable contribution to the country.
Fourth, as a normative or policy matter, I oppose birthright citizenship. While I favor significant immigration, there is little reason to allow children who just happen to be born here to automatically become citizens. Citizenship should be reserved for people based on the sensible immigration system discussed above. Birthright citizenship also makes it harder to have guest worker programs.
The Nonoriginalist Case Against Birthright Citizenship
Since I have never seen this argument anywhere else, let me briefly elaborate on why I believe there is a reasonably strong case against birthright citizenship based on a nonoriginalist, living constitution approach.
Text and Intent – One can read the text to deny the children of illegal aliens born in the US automatic citizenship. The 14th Amendment provides “All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens.” What does “subject to the jurisdiction of the United States” mean? I agree with Ramsey that the original meaning supports birthright citizenship but a nonoriginalist can read it differently. One can read “subject to the jurisdiction of the United States” to mean “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. 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. Thus, the children of illegal aliens would not be “subject to the exclusive jurisdiction of the United States.” It is true that the language does not say "exclusive jurisdiction" but sometimes people use language loosely, as when they use "property" to mean "real property." While inserting the term "exclusive" is a less persuasive reading of the text than the originalist one that Ramsey offers, nonoriginalists are not wedded to strict textual interpretation.
Moreover, one might argue that something like exclusive jurisdiction was intended. After all, the statute that the 14th Amendment was modeled on — the Civil Rights Act of 1866 — stated that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." This would have excluded illegal immigrants for much the same reason that exclusive jurisdiction would.
Normative Arguments – There are also strong normative arguments against birthright citizenship for the children of illegal immigrants (and for many others), as I mentioned above. Normative arguments are, of course, one of the mainstays of nonoriginalist interpretation.
Changes in Society – The circumstances at the time might also be thought to argue against the originalist interpretation that Ramsey offers. At the time of the 14thAmendment, there was not an illegal immigration issue, since there were few, if any federal laws restricting immigration. Thus, the Framers of the Amendment were unlikely to have had that issue in mind. Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter.
Other Developed Nations – Another type of nonoriginalist argument is to look to the existence of laws throughout the world, especially that of “civilized” countries in Europe. A strong trend in these laws is thought to suggest that normatively the United States ought to follow it. Significantly, other than Canada and the United States, there are very few developed countries that have birthright citizenship (depending on how one defines a developed country). And none of the European countries have it and several developed nations have repealed it in the last generation.
Thus, there is a strong nonoriginalist argument for reading the 14th Amendment not to confer birthright citizenship, at least to the children of illegal aliens. Nonoriginalists might not agree with this argument, but it is hard for them to argue that it is illegitimate, since many nonoriginalists accept this type of argument. In the end, one can’t have it both ways. If one favors the freedom that nonoriginalist interpretation gives to an interpreter, then one must live with the way that others may use that interpretive freedom.
* I have blogged about this issue in the past and I borrow some of my language from previous posts.
Posted at 8:00 AM