Trump Attempts to Overthrow 14th Am. Birthright Citizenship

[admin]

Where the Right-Wing Campaign Against Birthright Citizenship Comes From—and Why It’s Wrong: What a shock: The MAGA-loving Claremont Institute and John Eastman of “coup memos” notoriety are the biggest boosters.
by Philip Jaffa
TheBulwark.com
Jan 22, 2025
https://www.thebulwark.com/p/claremont- ... hn-eastman

DONALD TRUMP ON HIS FIRST DAY BACK in office issued an executive order purporting to end birthright citizenship, the principle, grounded in the Fourteenth Amendment, that anyone born in the United States, regardless of parentage, is an American citizen. Back in 2023, when he announced his plans to do this on Day One, Trump claimed that “many scholars” have shown that birthright citizenship is based on a “historical myth” and a “willful misinterpretation” of the Fourteenth Amendment, and he declared that he could undo it simply through a “correct interpretation” of the amendment.

And so the executive order he issued hours after being sworn instructs that “no department or agency . . . shall issue documents recognizing United States citizenship” for babies born in the United States without at least one parent who is a citizen.

Trump’s executive order is going to be hotly contested in the courts. Twenty-two states (as of this writing) have sued to stop the order, and the ACLU is preparing a lawsuit as well. There is a strong argument that the president’s action is unconstitutional.

Let’s set aside for a moment the questions of the legality and constitutionality of Trump’s action and ask instead: Where did he get this idea? How did eliminating birthright citizenship become a right-wing desideratum?

There is no mystery as to where this is coming from. The idea that birthright citizenship is a false interpretation or recent innovation that warps the intended meaning of the Fourteenth Amendment has been pushed into mainstream Republican circles by the tireless work of John Eastman and the Claremont Institute. See, for instance, this 2011 debate between Eastman and Ediberto Roman in the Florida International University Law Review. Or this 2008 article by Eastman in the University of Richmond Law Review. The Claremont Institute, where Eastman has long been a leading figure, and which has continued to employ him even after the scandal arising from his authorship of the notorious “coup memos” in 2020, has for years now been pushing the idea that the Fourteenth Amendment was never intended to provide citizenship to the children of illegal immigrants.

Other luminaries at the MAGA-adoring academic think tank have also sounded off about birthright citizenship, such as Michael Anton—now an official in Trump’s State Department—in essays like this bizarre 2018 rewrite of American history.

Today, Eastman published an article on a Claremont Institute website crowing about Trump’s action: “Birthright Citizenship: Game On!” He lists several of the Claremont scholars who have written on birthright citizenship, and says he hopes the “Claremont Institute’s long-standing view” of the issue will soon be vindicated by the Supreme Court.

JUST ONE PROBLEM: All the claims from MAGA and the Trumpians that the Fourteenth Amendment was not intended to extend citizenship to the children of illegal immigrants falter when confronted with the obvious truth that the Fourteenth Amendment, upon its adoption, did extend citizenship to a very large number of children of illegal immigrants.

Let’s take a step back. The Constitution as originally ratified put the authority to ban the slave trade under the authority to regulate immigration—not the authority to regulate property. Here’s Article I, Section 9: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” In other words, slaves who were brought in to the country contrary to federal law were to be considered illegal immigrants, not illegal property.

Congress banned the slave trade in 1808—but that ban was far from perfect. Thousands of slaves were smuggled into the United States between 1808 and 1860. It’s impossible to know the exact number—W.E.B. Du Bois pegged it at 250,000, although contemporary scholarship suggests it was lower—but whatever the figure, we have interviews with quite a few of these individuals’ children, like James Cape, Ben Simpson, and Josephine Howard, and they talk about where their families came from and how they became American.

Cape, Simpson, and Howard were among the thousands of children of illegal immigrants who were granted citizenship by the Fourteenth Amendment.

EASTMAN AND HIS COMRADES at the Claremont Institute base their theory upon an interpretation of a particular phrase in the Fourteenth Amendment: “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.” The claim is that the word “jurisdiction” really means “allegiance”; children born to illegal aliens here in the United States owe their allegiance to whatever country their parents are from.

But America has never recognized the doctrine of enforced allegiance. We actually went to war with Great Britain over this. In the 1790s, British warships began boarding American vessels and impressing Americans into the Royal Navy. Britain did not recognize American naturalization. Once an Englishman, always an Englishman.

America rejected Britain’s claim.

Perhaps the clearest and most famous statement of American policy on this issue is to be found in the Burlingame-Seward Treaty, ratified by the Senate on July 28, 1868—by coincidence the exact same day Secretary of State William Seward announced the ratification of the Fourteenth Amendment. Here’s the relevant passage from the treaty:

The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from the one country to the other, for the purposes of curiosity, of trade, or as permanent residents. [Emphasis added.]

There is no such thing in American jurisprudence as enforced allegiance. Allegiance must be voluntary.

If the Claremont Institute’s theory were correct—if it were true that children born in the United States owe their allegiance to their parents’ country of origin—then children born to Americans overseas would automatically owe their allegiance to the United States. They would never be asked to swear allegiance to something that was already required of them.

But there was a time when they were required to swear allegiance. Here’s a passage from the 1907 Expatriation Act:

Sec 6. That all children born outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninety-three of the Revised Statutes of the United States and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching 18 years to record at an American consulate their intention to become residents and remain citizens of the United States, and shall be further required to take the oath of allegiance to the United States upon attaining their majority.1

Donald Trump and the revisionists at Claremont are clearly wrong. The phrase “subject to the jurisdiction thereof” does not mean children born on U.S. soil to illegal immigrants owe their allegiance to a foreign government. No one owes their allegiance to anyone.

FINALLY, IT’S WORTH NOTING that birthright citizenship is hardly an innovation of recent years; it has a provenance that goes back to the early days of the republic, in the sense that it was written into the Fourteenth Amendment to counter long-simmering proposals for the mass deportation of blacks. Jefferson, Madison, and many other Southerners wished to combine emancipation of slaves with mandatory deportation.

Here is an anonymous letter of protest (under the pen name “A Freeman”) in the Maryland Gazette, dated December 30, 1790:

We have no just right to export [or] banish any man, unless he previously violates some law, which inflicts transportation as a just punishment for his crime.—A different sentiment cannot correspond with the idea, that “all men are born equally free, and in point of human rights to liberty, stand on equal ground.” But where would you export them to? They are as much Americans now as we, and we as much European as they are Africans—Nothing but a mind influenced by prejudice or partiality can countenance or contemn this idea or argument. [Emphases in original.]

But of course the United States did have a mass deportation authorized by Congress—the Indian Removal Act of 1830, with its infamous Trail of Tears. In August 1825, an essay in the Georgia Journal under the pen name “Socrates” lays out the Southern argument: “If they [the federal government] make a citizen of an Indian, what hinders them from making a citizen of a free negro, and if they can make a citizen of a free negro, what hinders them from naturalizing slave negroes?” (emphases in original).

The deportation of non-citizens was the answer in Georgia—especially since Native Americans (who then numbered around ten thousand) possessed one-quarter of the present-day state.

Mass deportation of nonwhites was still very much on the table after the Civil War. A week after surrendering to Ulysses S. Grant at Appomattox Court House on April 14, 1865, Robert E. Lee (who was to become the most visible symbol of Southern resistance) sat down with a reporter from the New York Herald:

The best men of the South have long been anxious to do away with this institution, and [are] quite willing to-day to see it abolished. They consider slavery forever dead. But with them, in relation to this subject, the question has ever been, ‘What will you do with the freed people?’ That is the serious question to-day, and one that cannot be winked at. It must be met practically and treated intelligently. The negroes must be disposed of.

Almost a year later, on February 17, 1866, Lee once again expressed his support for the deportation of blacks. During congressional hearings on Reconstruction, Rep. Henry Taylor Blow (R-Mo.) asked Lee: “Do you not think that Virginia would be better off if the colored population were to go to Alabama, Louisiana, and the other southern States?” Lee responded: “I think it would be better for Virginia if she could get rid of them. That is no new opinion with me. I have always thought so, and have always been in favor of emancipation—gradual emancipation.”

Emancipation plus deportation. This was the preferred Southern plan. And had been from the very beginning. This is why the Fourteenth Amendment was written the way it was written—why birthright citizenship was the intention.

Not that the adoption of the Fourteenth Amendment extinguished the racist impulse to deport. A version of the “back to Africa” plan was endorsed by the most die-hard America Firsters—the ones who stuck to their racism and isolationism even after Pearl Harbor. Here is an excerpt from the America First party platform, August 1944:

Noting that 20,000 part-Negroes become recognized as whites annually. And noting also that it will be harder to solve the problem of 40,000,000 Negroes in our midst in the future than of 13,000,000 today, and believing that it is unfair to both races to have to live together, we advocate a return to the solution long ago proposed by Thomas Jefferson and successively advocated by many other Presidents . . . namely, implementing the Negroes’ right to return to the homeland and environment in which nature first nurtured them.

The Fourteenth Amendment establishes birthright citizenship. Its purpose is clear. It is meant to prevent Congress or the president from deporting people who are born on American soil—including those accused of “poisoning the blood” of this country.

_______________

Notes:

1 Today, children in such cases are no longer required to swear an oath of allegiance. One practice still around today that drives home the point that America is not a land of enforced allegiance: the Pledge of Allegiance, familiar to schoolchildren everywhere.

[admin]

How the modern Supreme Court might view the 14th Amendment and birthright citizenship
by Joan Biskupic
CNN Chief Supreme Court Analyst
Updated 2:17 PM EST, Thu January 23, 2025
https://www.cnn.com/2025/01/23/politics ... nar_google


This paper certified that Wong Kim Ark was able to follow through with his plan to leave the United States and return. Three men signed this letter attesting to his identity. Included with the attestation is a signature of the witness, who is the notary Robert M. Edwards, and a photograph of Wong Kim Ark. This paper certified that Wong Kim Ark was able to follow through with his plan to leave the United States and return. Three men signed this letter attesting to his identity. Included with the attestation is a signature of the witness, who is the notary Robert M. Edwards, and a photograph of Wong Kim Ark. US National Archives and Records Administration. CNN

In the few days since he returned to the White House, President Donald Trump’s sweeping executive orders and mass pardons have shattered political and legal norms. But one order is in a category of its own.

His decree proposing to end the constitutional promise of birthright citizenship contradicts the plain words of the 14th Amendment and would reverse an 1898 Supreme Court milestone. That case, brought by the son of Chinese nationals, has long guaranteed citizenship for anyone born in the United States, unless the parents fall under such narrow exceptions as foreign diplomats or soldiers of invading armies.

The Trump directive recalls the era of Dred Scott v. Sandford, the infamous 1857 decision that said Black people could not be citizens. That case, which helped precipitate the Civil War, was reversed by ratification of the 14th Amendment in 1868.

Perhaps to counteract comparisons with a reviled decision that rested on notions of White supremacy, the executive order referred to Dred Scott at the outset, calling it a “shameful decision.” But then the directive recast the 14th Amendment to befit Trump’s anti-immigrant mission and to exclude children born to undocumented parents.

Immigrant-rights advocates, civil libertarians and 24 Democratic-led states and cites immediately filed a series of lawsuits. On Thursday, a Ronald Reagan-appointed federal judge in Seattle issued a temporary restraining order against Trump, calling the executive order “blatantly unconstitutional.”

The challenges set the stage for a court confrontation over a central tenet of American identity and assurances woven into life here for more than a century.

The litigation is likely to reach the Supreme Court, where Dred Scott has long been regarded as a great “self-inflicted wound.” But a new conservative supermajority has given Trump supporters hope that it might eventually reverse yet another precedent.

This one would be different.

Trump’s view of the 14th Amendment conflicts with the clear text and a legal interpretation more than a century old. And in contrast to other areas of policy and individual rights, the justices have not signaled any desire to revisit United States v. Wong Kim Ark.

Unlike landmarks like Brown v. Board of Education, New York Times v. Sullivan and Roe v. Wade, Wong Kim Ark and birthright citizenship never became flashpoints at justices’ Senate confirmation hearings. Nor has birthright citizenship become part of the daily political discourse the way abortion has. And unlike the guarantee of privacy and other fundamental rights implicit in the Constitution, the Citizenship Clause of the 14th Amendment is explicit.

It states: “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.”

Another factor distinct to this moment: The current Supreme Court majority takes an “originalist” approach, and the history and tradition underlying the 14th Amendment and the 1898 case would make reversal of Wong Kim Ark difficult to justify.

Writing last year in the Georgetown Immigration Law Journal, Professor Sandra Rierson said the expansive text of the 14th Amendment, including the phrasing regarding jurisdiction, “had a clear and long-standing meaning under the common law that existed” when the Amendment was adopted, and “that meaning was reiterated and explained throughout the congressional debates.”

Rierson, whose essay traced the proliferation of proposals to end birthright citizenship, observed that modern opposition has arisen “in the context of escalating hostility towards immigrants, especially non-white immigrants.”

After Trump issued his order this week, Rierson, who teaches at Western State College of Law in California, posited that the conservative justices who control the court would, based on their own reasoning, be unlikely to reverse precedent.

“If what they’re really concerned about is history and tradition in the United States,” she told CNN, it would be difficult to accept Trump’s executive order.

“Wong Kim Ark came out at a time of anti-immigrant phobia that certainly rivals what we have today,” she added. “It’s not that the justices didn’t understand hostility toward immigration. … Politicians have always exploited the fear of the other.”

During the 1890s, anti-immigrant fervor was particularly directed at the Chinese. The case began when Wong Kim Ark, at roughly age 21, left America to visit relatives in China; upon his return, he was denied entry, on grounds that he lacked US citizenship.

In its 1898 ruling, the Supreme Court majority said the plain words of the 14th Amendment protected the son of Chinese nationals who was born in the United States.

“The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States,” Justice Horace Gray wrote for the majority. “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”

The court concluded, “To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.” The court noted that Wong Kim Ark’s parents had at the time “a permanent domicil and residence in the United States,” yet the court did not condition its interpretation of the 14th Amendment on that fact.

Lawsuits focus on harm of Trump’s order

The series of lawsuits that have been filed since Monday emphasize the potential harm to individual people under Trump’s order.

“Babies are being born today here, and in the plaintiff states and around the country, with a cloud cast over their citizenship,” a lawyer for the state of Washington said in court Thursday.

Nationally, according to the complaint from four Democratic-led states in Seattle, in 2022, “there were approximately 255,000 births of citizen children to non-citizen mothers without lawful status (undocumented) and approximately 153,000 births to two undocumented parents.”

The filing outlines the consequences for children who would lose eligibility for vital benefits and social services. Adults would be unable to obtain Social Security numbers and work lawfully. And they would not be able to vote. Overall, the claim asserts, the newly affected individuals “will be placed into lifelong positions of instability and insecurity as part of a new underclass in the United States.”

Since Trump first ran for the presidency in 2016, he has railed against birthright citizenship. During his 2024 campaign he vowed that on Day One of a second term, he would order an end to birthright citizenship, which he insisted was “based on a historical myth and a willful misinterpretation of the law.”

Monday, after again taking the oath of office from Chief Justice John Roberts, Trump laid out his order called “Protecting the Meaning and Value of American Citizenship.”

He opened by stating that “The privilege of United States citizenship is a priceless gift.” He said Dred Scott misinterpreted the Constitution “as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.”

Then he asserted: “But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’”

Rejecting the entrenched understanding of the Citizenship Clause, Trump set out two new categories of individuals born in the US who would not be covered: those whose mother was unlawfully present in the US and whose father was not a US citizen or lawful permanent resident at the time of the child’s birth; and those whose mother was in the US on a lawful but temporary visa (such as a student or tourist visa) and whose father was not a US citizen or lawful permanent resident at the time of the birth.

He said his January 20 order would take effect in 30 days.

Trump’s limitation on the 14th Amendment echoes legal theories, previously on the fringe, that the phrase “subject to the jurisdiction” of the US would not reach undocumented immigrants.

Former Chapman Law professor John Eastman, one of the most prominent critics of birthright citizenship and a strategist behind Trump’s failed challenge to the 2020 election results, argued the 14th Amendment covered individuals subject to “complete” political jurisdiction with no allegiance elsewhere.

“Justice Gray simply failed to appreciate … that there is a difference between territorial jurisdiction and the more complete, allegiance-obliging jurisdiction that the Fourteenth Amendment codified,” Eastman wrote in the University of Richmond Law Review, contending the 1898 court wrongly construed the “jurisdiction” restriction to cover a discrete category such as the children of diplomats.

Eastman argued the majority opinion in Wong Kim Ark was also “at odds with” principles underlying the sovereign power of naturalization. “What it meant, fundamentally, was that foreign nationals could secure American citizenship for their children unilaterally, merely by giving birth on American soil, whether or not their arrival on America’s shores was legal or illegal, temporary or permanent.”

Roger Taney and the infamous Dred Scott

No current cases would support Trump’s position on birthright citizenship. Yet traces of his rhetoric about immigrants “invading” America surfaced last year in an opinion by US Appeals Court Judge James Ho that could, perhaps, eventually be used to advance the president’s stance.

In a concurring opinion in a dispute unrelated to birthright citizenship, Ho, a 2018 Trump appointee on the federal appellate court covering Texas, Louisiana and Mississippi, was receptive to arguments that illegal immigration at the Texas border could constitute an “invasion.” That language could evoke an exception to the established 14th Amendment interpretation, for children of invading armies.

Judge Ho has often reinforced emerging conservative theories. Before joining the bench, however, he wrote an essay directly addressing birthright citizenship and said the 14th Amendment and Wong Kim Ark case protected children of undocumented immigrants.

“All three branches of our government – Congress, the courts, and the Executive Branch – agree that the Citizenship Clause applies to the children of aliens and citizens alike,” he said in a 2006 essay in The Green Bag.

Ho concluded with a warning if a move were made to withdraw birthright citizenship: “Stay tuned: Dred Scott II could be coming soon to a federal court near you.”

Chief Justice Roberts received no questions about the Wong Kim Ark case during his 2005 Senate confirmation hearings. But Dred Scott was raised, and Roberts responded by calling it, “perhaps the most egregious examples of judicial activism in our history … in which the Court went far beyond what was necessary to decide the case.”

“And really, I think historians would say that the Supreme Court tried to put itself in the position of resolving the dispute about the extension of slavery, and resolving it in a particular way that it thought was best for the Nation,” he added. “And we saw what disastrous consequences flowed from that.”

Since then, Roberts has also alluded to Dred Scott in terms of his own legacy.

“You wonder if you’re going to be John Marshall or you’re going to be Roger Taney,” he said in 2010, contrasting the great 19th century chief justice with the chief justice who wrote Dred Scott.

“The answer is, of course, you are certainly not going to be John Marshall,” Roberts said. “But you want to avoid the danger of being Roger Taney.”

This story has been updated following Thursday’s ruling blocking the executive order.