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National Review’s Latest Defense of Birthright Citizenship

By: Michael Anton
September 18, 2018

hen did “conservatism” decide that birthright citizenship is the hill to die on for the “right”? I could not say.

That they have so decided is plain from various responses to recent writings by Edward J. Erler, John Eastman, and myself. We maintain (and I learned the argument from Erler and Eastman, groundbreaking scholars on this issue, both of whom have been my teachers) that the 14th Amendment to the Constitution does not, and was not intended to, mandate birthright citizenship for the children of illegal immigrants.

“Conservatism” is still howling in outrage. How dare we!

Various arguments have been trotted out, all of them “pre-butted” by things we had already written, yet we responded anyway. I sure hope somebody, somewhere got something out of those exchanges, because it’s abundantly clear that mainstream “conservatism” did not. And so here it comes again—in “conservatism’s” alleged “flagship publication,” no less—to insist the United States absolutely, positively must confer birthright citizenship on the children of illegal immigrants.

Before addressing the larger questions raised by this bizarre fixation, it’s worth rehashing (again) at least part of the textual debate. (For those who want to read some of the earlier pieces, which go into all this in much greater detail, I point to this, this, this and this. For those who really want to understand the argument in all its detail, complexity and nuance, I point to Erler’s forthcoming tour de force, which I was privileged to read prior to publication.)

“Pound the weak tooth,” a friend in politics likes to say. That is, if your opponent has one weakness—no matter how minor, trivial or even made up—focus all your fire on that issue to the exclusion of everything else. Indeed, pretend that the rest does not even exist. Define the opponent solely by the weak tooth.

My “conservative” critics have joined their liberal brethren in dismissing my entire argument because I inserted the word “or,” in brackets, into a quotation from Senator Jacob Howard of Michigan, from a speech in the 1866 Senate debate on the 14th Amendment. In hindsight, I wish I had not done so. Not because I agree with critics that doing so “changes the meaning significantly” but because it gave critics a weak tooth to pound, to the exclusion of all else.

The latest missive, by Dan McLaughlin, thus accuses me of “placing a heavy weight on the grammatical construction of a political speech rather than a legislative text.” This is incorrect in two fundamental ways.

First, it is not I who place “a heavy weight on the grammatical construction of a political speech” but my critics. It is they who insist that this one quotation from Senator Howard, and only one interpretation thereof, settles the matter. That’s because only that particular quotation is ambiguous enough to be spun as leaving the door open to birthright citizenship for the children of illegal immigrants. When one reads through the entire debate on the 14th Amendment—which Erler, Eastman, and I have done, while our critics apparently have not—the context, and therefore the meaning, of that quotation becomes clear. It is simply unsustainable to insist that Senator Howard meant that the 14th Amendment was intended to grant birthright citizenship to the children of illegal immigrants.

In one earlier rebuttal alone, I cited no fewer than ten other quotations from the debates on the 14th Amendment and the Civil Rights Act of 1866 (whose clauses on citizenship are nearly identical). Ten. So far as I have been able to find, none of those still attacking me has addressed any of those other quotations. Nor do they address the fact—which I explicated quite clearly—that later in the debate, when Senator Howard clarified what he meant by the quotation in question, he makes it plain that he meant exactly what I interpreted him to mean. Instead, my critics—liberal and “conservative”—just keep pounding the weak tooth. Since examining any of the other quotations in the debate undermines their case, they simply ignore them all.

As I noted in an earlier piece:

to sustain the line of attack being used against me, one must insist on three things. First that only the first quote from Senator Howard is authoritative in interpreting the 14th Amendment. Second, that the quote means only what my critics say it means and is open to no other possible interpretation. Third, that all the other quotes cited which clearly state that the framers of the Amendment equated “subject to the jurisdiction” with “not owing allegiance to anybody else” are somehow irrelevant. Even though they were spoken in the same debate—some of them to express agreement with Senator Howard!

No rebuttal to this has yet been attempted, much less accomplished.

The second point—that I place more weight on a speech than on a “legislative text”—is not merely untrue but disingenuous. Surely any “conservative” lawyer who purports to be concerned with Constitutional interpretation knows that Constitutional language is not always clear, or at least does not always clearly answer every contemporary question. The whole premise of “originalism” and “strict constructionism” is that, when and where there are doubts on the proper interpretation of a Constitutional provision, the best and most proper place to look for illumination is to ratification debates. That is, the right approach is to try to understand what the framers and adopters of the clause in question intended it to mean. “Conservatives” used to be in favor of “originalism.” Are they still? If so, why am I being chided for looking to the ratification debate on the 14th Amendment for illumination on that amendment’s meaning?

To repeat an argument already made in earlier writings—but that apparently needs repeating—it is not starkly obvious from the text of the 14th Amendment exactly what every word is intended to mean. Specifically, it is not obvious from the text alone why the jurisdiction clause—“subject to the jurisdiction thereof” (i.e., of the United States)—is there or what it means. If, as our critics insist, it simply means “subject to American law” then it is entirely superfluous. With the exception of foreign diplomats, any person physically in the United States is subject to American law. That emphatically includes illegal immigrants and their children. If the 14th Amendment was intended to grant citizenship to the latter, then clearly the jurisdiction clause has no purpose. The first sentence of the Amendment could simply have read: “All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.” If it said that, there would be no question that the text confers birthright citizenship on the children of illegal aliens.

But it doesn’t say that. It adds that intervening clause: “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.” [Emphasis added.]  Why is that clause there? Most defenders of birthright citizenship for the children of illegal immigrants insist that it is there only to exclude the children of foreign diplomats and Indian tribes. I note here the hypocrisy in ruling illegitimate my looking beyond the text of the amendment for illumination of its meaning—for that is exactly what my critics must do to have any hope of sustaining their assertion that the framers of the 14th Amendment meant to exclude from birthright citizenship only the children of foreign diplomats and Indian tribes. Certainly, the text itself does not say that! They, like I, must look for clarification beyond the text, to the ratification debate.

But in their case, the ratification debate offers no solace. Those aforementioned ten other quotations—and many, many others—make abundantly clear that the framers of the amendment meant to exclude the children of all foreigners (barring, perhaps, the children of legal permanent residents). Here is (again) just one quotation, from Senator Lyman Trumbull of Illinois, who says that “subject to the jurisdiction” means: “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.” [Emphasis added.] I still do not see how this does not settle the matter.

McLaughlin’s attack then turns on two other points. The first is a twofold misreading of the Wong Kim Ark decision of 1898. He falsely claims that the parents of Wong Kim Ark were “transients” in the United States. Not so; they were legal permanent residents. Thus even if one accepts Wong Kim Ark as constitutionally sound, one is bound to admit only that the children of legal permanent residents are constitutionally entitled to birthright citizenship.

But Wong Kim Ark is not constitutionally sound, as the dissent on that decision by Chief Justice Melville Fuller demonstrates. McLaughlin gloats that the court ruled “that the Fourteenth Amendment had adopted the doctrine of jus soli, by which citizenship was conferred at birth rather than through the citizenship of the parents, and thus its logic extends to all born here regardless of parentage.” This is true insofar as that is what the majority opinion asserts. But Fuller’s dissent makes clear that the majority opinion is incorrect. Jus soli is a doctrine of English common law which holds that all born subject to the British crown are forever subject to the crown. Fuller correctly notes that the American Revolution overturned jus soli for the American nation. Indeed, in the very act of establishing the American nation, the American people renounced subjectship to the British crown. They—we—were no longer bound by allegiance to that crown. Our common bonds of citizenshipnot subjectship—were redefined on the basis of the social compact and it is on this foundation that they still rest. Jus soli stands or falls by the doctrine of indissoluble allegiance. But in Chief Justice Fuller’s ringing words, “from the Declaration of Independence to this day the United States have rejected the doctrine of indissoluble allegiance.”

This is also made clear by the Expatriation Act of 1868, passed the same year that the 14th Amendment was ratified. The act declares that “the right of expatriation is a natural and inherent right of all people,” and further provides

that any declaration, instruction, opinion, order, or decision of any officers of this government which restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.

These are stark repudiations of the doctrine of jus soli. An inherent right of expatriation is fundamentally opposed to indissoluble allegiance. This law, which was supported by many of the same men who drafted the 14th Amendment, was intended explicitly to overturn jus soli and make indisputable that citizenship in America is based on the principle of consent as articulated in the Declaration of Independence. Indissoluble allegiance clearly violates the “consent of the governed,” which is central to the legitimacy of the American regime and to the coherence of American political thought. Consent is granted initially at the establishment of the social compact (in the American case, on July 4th, 1776). Children born to citizens after that initial establishment of the compact consent, upon reaching adulthood, by choosing to remain in the country. They can withdraw their consent by emigrating. There is, in the American system, no perpetual allegiance to the American—or to any—government.

So much for jus soli.

Second, McLaughlin trots out a few other, older quotations—not from the ratification debate on the 14th Amendment—and insists that they illuminate the true meaning of that amendment. This is very weak sauce. I note again the inconsistency that appeals beyond the text of the amendment are disallowed to me but are A-OK for him. Beyond this, even if one could prove—which the quotations cited absolutely do not—that, prior to the 14th Amendment, it was settled American law that the children of illegal immigrants were entitled to birthright citizenship, it would not change the fact that once the amendment was ratified, the nation was and remains bound by it and not by any prior understanding. The Constitution is amendable for a reason. Once amended, the new clause becomes part of “the supreme law of the land” and we are to be governed by it, and not by ambiguous quotations from years or even decades before.

The only questions, then, are what does the 14th Amendment really mean, and what was it intended to mean? The rest is a sideshow.

One of the more perverse arguments that “conservatives” keep making is that because illegal immigration was not a serious problem in the 1860s, the framers of the 14th Amendment did not and could not possibly have explicitly intended to exclude the children of illegal immigrants from birthright citizenship. Therefore we today have no choice but to grant birthright citizenship to the children of illegal immigrants.

This “argument” admits that the framers of the 14th Amendment did not intend to require birthright citizenship for the children of illegal immigrants. And, indeed, one can search high and low in the ratification debate and find no explicit affirmation of such an intention. I made this point in an earlier essay. Another critic admitted that my claim is true, but called it “irrelevant”: “Objecting, as [Anton] does, that the writers of the Fourteenth Amendment never explicitly endorsed citizenship for children of illegal immigrants is also irrelevant.”

To which I replied:

If the framers of the 14th Amendment didn’t specifically intend to include the children of illegal immigrants and other non-citizens, how and why is it that all subsequent generations of Americans are bound to act as if they had? Why is this non-Constitutional non-provision, written down nowhere, intended by no one, supposed to bind us forever? Is this what “conservative” constitutional interpretation and jurisprudence have come to? If so, how is it any different than liberal jurisprudence?

In other words, this “argument” rests on the implicit assertion that the framers of the 14th Amendment were careless, or insufficiently foresighted, and inadvertently included a loophole, harmless enough in their own time of negligible illegal immigration but enormously consequential in our time of porous borders and extremely high levels of illegal immigration.

Implicit as it may be, this is an extraordinary admission. To the extent that our “conservatives” are not openly for open borders (and quite a few of them are), they mostly shy away from claiming that birthright citizenship for the children of illegal immigrants is good—that is, good for America and our existing citizenry. On some level, they intuit that automatic birthright citizenship is antithetical to common sense. Or more precisely, they realize that most Americans—and nearly all Republicans and genuine conservatives—think automatic birthright citizenship is antithetical to common sense. So rather than make the futile case that birthright citizenship was intended all along—and that’s a good thing!—they default to “We’re stuck with it; it’s in the Constitution.”

Except, as we have repeatedly seen, it’s not.

Here are three questions for our “conservatives.” Suppose you could go back to 1866 and tell, and then ask, the framers of the 14th Amendment the following:

About a century from now, foreign nationals will begin in large numbers to cross our southern border illegally and remain in the country illegally. In addition, foreigners on student or temporary work visas will not leave when their visas expire but will instead unlawfully remain, intending to stay their whole lives. These practices will intensify in the decades that follow so that, by the year 2018, there will be some 12.5 million illegal immigrants (at least; nobody really knows) living in the United States. Elite opinion will universally insist that the 14th Amendment—which you drafted—requires that our government confer citizenship to the children of these illegal immigrants. And, indeed, the U.S. government has been doing exactly that for decades. This practice is widely known throughout the world and incentivizes people in poorer countries to come to the United States illegally, knowing that their children born here will be made citizens, which will make it all but impossible for parents here illegally ever to be deported. Furthermore, those parents know that their citizen-children can later sponsor them and other members of their families for legal residency. In addition, advances in transportation technology will give rise to a phenomenon known as “birth tourism.” Mothers from relatively rich nations—including nations hostile to the United States—will travel to our country about a month before giving birth and pay large sums to so-called “maternity hotels” to have their babies in the United States. Those children are then automatically granted U.S. citizenship and therefore able, upon reaching adulthood, to bring entire families to settle in the United States.

Is this what you intend the 14th Amendment to do?

So, “original intent conservatives”: what do you think the framers of the 14th Amendment would answer? I think we all know. Why, then, are we to be forever bound by something that they never intended, that makes no sense, and that is doing great harm to our country?

Second question. Suppose birthright citizenship for the children of illegal immigrants were so unambiguously forbidden by the text of the Constitution that even you could not deny the plain meaning of the language. Suppose the 14th Amendment read thus:

All persons born or naturalized in the United States, excluding persons subject to any other foreign state or born to persons subject to any other foreign state, are citizens of the United States and of the State wherein they reside.

If that were the case, would you favor a constitutional amendment overturning this provision and requiring birthright citizenship for the children of illegal immigrants?

Or flip the script. Suppose the 14th Amendment instead read thus:

All persons born or naturalized in the United States, excluding only the children of foreign diplomats and of enrolled members of Indian tribes, are citizens of the United States and of the State wherein they reside.

That would—even I would have to agree—amount to an explicit constitutional grant of birthright citizenship to the children of illegal immigrants. Given the circumstances of 2018—negligible controls on the southern border, at least 12 million illegal immigrants in the country, the foreign-born percentage of the population nearing the Ellis Island peak, with all the attendant stresses on our welfare, judicial and school systems—would you support a new amendment that disallowed birthright citizenship for the children of illegal immigrants?

To ask is to laugh. Of course they wouldn’t. Indeed, it’s hard to imagine a “conservative” not salivating while reading my second imagined rewrite of the 14th Amendment. If only the actual text were this iron-clad! they swoon. Since it isn’t, they spend an inordinate amount of their finite intellectual capital gaslighting the rest of us with the flimsy insistence that it is.

I noted in a prior article that birthright citizenship is a global anomaly, practiced by only 33 of the world’s 197 countries. In addition, in the last several decades, at least nine countries that once offered some version of automatic birthright citizenship have repealed the practice. No country—not one, as far as I have been able to find—has gone the other way, from barring to allowing automatic birthright citizenship.

Thus, today, 83% of the global population lives in states that do not grant birthright citizenship; only 17% of the world’s people live in a state that does. Majorities are not always right and numbers—even overwhelming numbers—don’t guarantee truth. But the “wisdom of crowds” hypothesis at least suggests that maybe those 83% know something that our “conservatives” do not. The suggestion becomes especially suggestive if birthright citizenship in the American case is nothing more than the unintended consequence of textual imprecision—which, as we have seen, the “conservative” argument for birthright citizenship clearly demands.

Birthright citizenship, Erler has argued, is “a great magnet for illegal immigration.” That is emphatically true in the American case. Our country still has the world’s largest economy, far greater per-capita GDP than all but one country in our hemisphere, and wholly inadequate controls on our southern border. The United States, in addition, is far less afflicted by violent and other crimes than are many other countries to our south. It’s no wonder, then, that millions want to come here and do come here.

We may understand and sympathize with that desire. But sympathy is not a sound basis for policy—at least not by itself. Out of sympathy or compassion for persons displaced by war or other calamities, we take in a limited number of refugees every year. No one argues that doing so strengthens the American economy or polity, except perhaps in some moral sense. It is rather an act of generosity, a freely given gift.

A large, rich nation can afford such generosity—to a point. It cannot afford to allow such generosity to be interpreted to require birthright citizenship to the children of anyone who manages to cross its border illegally.

Yet “conservatives” leap to the defense of birthright citizenship with far more alacrity and ardor than they employ to support the rule of law, border security, the integrity of American citizenship, the interests of the actual American people, or many other genuinely conservative causes. I asked in an earlier piece—and here ask again—is there any practical limit to mass immigration or birthright citizenship that “conservatives” would accept?

How about this: Russia supposedly poses more of a threat today than it did during the height of the Cold War. So can we at least stop the practice of granting birthright citizenship to the children of Russian women who fly to Miami specifically to game our silly system?

I have yet to hear an answer. I suspect that “conservatism” fears that to crack the door just a bit—to allow one limit, no matter how narrow or sensible—is to leave the debate vulnerable to being thrust wide open. Who knows what other limits might follow if we concede this one? This, I note in passing, is identical to the “logic” mustered by the pro-abortion left to oppose laws against infanticide.

The basis of the American regime is the social compact, not jus soli or anything else. The social compact is a voluntary association of citizens. It cannot justly, lawfully be joined against the will of its existing members. A social compact without limits—without borders—is impossible, a self-contradiction: a compact that applies indiscriminately to all is not a compact. The purpose of our particular social compact is to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” [emphasis added]—i.e., not to people who come here uninvited and in violation of our law.

The meaning of “conservative” is “that which conserves.” It is not “that which changes” or “that which fundamentally transforms.” Change can sometimes serve conservative ends—the supreme example being the American Revolution—but knowing when, where, and if that is the case requires both prudence and an underlying understanding of permanent ends that official “conservatism” today sadly lacks.

It is quite clear how birthright citizenship and the mass immigration it attracts drive change. It is far less clear how they are in any way “conservative.” Certainly neither “conserves” the rule of law, of which birthright citizenship for the children of illegal immigrants makes a mockery. Neither conserves the social compact. Nor does either conserve the interests of existing American citizens, which should always be the primary consideration driving immigration policy. The usual “conservative” arguments—the economy! entitlements! it’s who we are!—are hollow, mendacious, and self-contradictory, and at this point mere slogans.

One thing we can be absolutely sure that automatic birthright citizenship does not conserve is conservatism. America’s cities, counties, and states with the highest levels of illegal immigration are (or are among) the nation’s “bluest” and most liberal, where conservative ideas and political candidates hold no purchase. The correlation is so strong that it would be folly not to admit at least some causation. The “conservative” enthusiasm for illegal immigration thus amounts to a political and philosophic death wish.

One can already hear the “conservative” rejoinder: “We just have to do a better job of explaining our ideas.” They’ve been saying that for fifty years and getting nowhere. Meanwhile, the electoral and political climates continue to move inexorably away from them—us—yet all they can rouse themselves to do is defend to the death automatic birthright citizenship.

At any rate, this rejoinder is revealing. Conservatism of late has, as we have seen, not set for itself as its fundamental task to conserve the existing American nation, its ingenious form of government, its people, communities, traditions, and so on. It has rather taken up the quixotic task of persuading illegal immigrants and their children of the wisdom of supply side economics, enterprise zones, and school vouchers. Its repeated failure to make any headway at this self-appointed task has not chastened it in the least.

A self-aware conservatism would say to itself:

Our longstanding and current approach doesn’t appear to be working. Maybe there will come a day when we hit upon the precise message that will win over illegal immigrant communities. But until that day, prudence requires we get control of the border. In particular, we’d better get a handle on automatic birthright citizenship before it swamps our conservatism.

But official conservatism has never even glancingly thought that, much less articulated it aloud. Instead our “conservatives” begin from the premise that automatic birthright citizenship is unquestionable, not something to be debated, deliberated, or voted on. It is simply a given, a law of nature, a totem, a god. If conservatism itself must be sacrificed to this god, our “conservatives” are happy and eager to wield the knife.

I for one do not care if this version of “conservatism” commits mass suicide, so long as it confines the damage to itself. In fact, the act is likely to help the genuinely conservative project of conserving the American nation. A “conservatism” that is more insistent than ever that America’s border is merely a line on a map, otherwise without meaning, is in no sense “conservative.” Its ideas will not only not conserve America; they will not conserve conservatism.