President Donald Trump took the unusual step of attending part of the oral argument regarding his executive order aimed at ending birthright citizenship in the United States. Since the passage of the 14th Amendment, virtually any child born on American soil has become a citizen. This has been true regardless of the citizenship of the parents. It is believed that the ability to achieve citizenship for one’s children in this way has served as an enticement to illegal border crossings, especially across the Mexican border, and “birth tourism” on the part of travelers. A sizeable number of Chinese parents have come to the United States to have a child who could return later to enjoy the status of citizen.
There are legitimate public policy reasons for U.S. citizens to see birthright citizenship as a potential problem worthy of concern. People believe undocumented newcomers crossing into the country will be less accountable for crime and more likely to use up significant resources in healthcare and education without being fully known and taxed. With China as a rival, Americans imagine a plan to develop disloyal citizens who will use their status against the United States. While the truth is typically more complex than rhetoric, the debate is worth having.
But the bigger point has to do with legal interpretation. As it became clear in the oral arguments that justices were likely to rule against the president, many supporters expressed dismay. Despite the disagreement of some fellow conservatives, I do not think the words, “All persons born or naturalized in the United States and subject to the jurisdiction thereof,” means anything different that it has been taken to mean. The immediate intent of the amendment was to establish the citizenship of all the former slaves born in the United States and their children. What does “subject to the jurisdiction thereof” mean? I believe the most obvious meaning (endorsed by John Yoo) is that those not subject to the jurisdiction were foreign diplomats and their families, invading armies, and the Native Americans living on their tribal lands. Nevertheless, there is a fair interpretive argument that can be made about the language and original intent.
Click Here to Read More (Originally Published at World Magazine)
Hunter (J.D., Ph.D.) is the provost and dean of faculty at North Greenville University in South Carolina. He is the author of The End of Secularism, Political Thought: A Student’s Guide and The System Has a Soul. His work has appeared in a wide variety of other books and journals. He is formally affiliated with the Ethics and Religious Liberty Commission; Touchstone, the Journal of Markets and Morality; the Center for Religion, Culture, and Democracy; and the Land Center at Southwestern Seminary.