Trump, the 14th Amendment, the Caravan, and the Constitution

In today’s installment of exploding heads, President Trump has proposed to overturn, via executive order, the constitutionally dubious “birthright citizenship” interpretation of the 14th Amendment. There’s no question he has the authority to issue such an order in his capacity as president and commander-in-chief — each of the three branches is equally responsible for fidelity to the Constitution, and each is free to interpret it as it sees fit.

That the 14th amendment — the centerpiece of the Reconstruction Amendments passed and ratified under the Johnson and Grant administrations, but proposed and voted in by the Radical Republicans in Congress — applies specifically and only to the newly freed slaves is clear not only from its historical context, but to its very language:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The key phrase is “subject to the jurisdiction thereof.” The Court later ruled, in the Wong Kim Ark decision (1898), that children born to foreign diplomats, or born to enemy soldiers occupying U.S. territory, were not protected under the 14th, as they were clearly not under American jurisdiction. (Neither were American Indians, until 1924.) But then, neither are illegal alien invaders, who openly proclaim their contempt for American immigration law even as they march toward our southern border.

Further, our immigration laws were designed for lawful immigration, with some carve-outs for genuine refugees and asylum-seekers. What they were not designed to do is absorb a calculated onslaught of lawbreakers with no beneficent intent; instead, these people are very clear about their purpose: to manipulate the loopholes of the laws, force entry, earn money, and send it back home to their “countries” of origin — three of which (Honduras, Guatemala, and El Salvador) are among the most savage and violent places on earth. America has no domestic need for these people, and no moral obligation to admit them, especially under these circumstances. There is no war ongoing in their homelands (the violence is entirely of their own making, and cultural patrimony) and economic “refugees” can apply through proper channels like everybody else. America is a sovereign nation, not an international charity.

(I disagree with my good friend John Yoo on this one. You can read his learned defense of birthright citizenship here.)

And yet red-diaper baby organizations such as the ACLU continue to insist that “birthright citizenship” is constitutional, using the fig leaf of the Ark decision (but Ark himself, although excluded from American citizenship at the time by the anti-Chinese laws in effect, was a legal immigrant, born of legally admitted parents and hence subject to American jurisdiction). Worse, they couch their deliberate misreading of the 14th amendment in “moral” terms:

Why should the children of non-citizens become citizens by virtue of their birth in the United States?

Because this has been the story of our country, and it’s what makes our country great. We are a nation founded and created based on principles of equality, fairness and opportunity. In the U.S., every child – regardless of her background – is born with the same rights as every other U.S. citizen.

The alternative is fundamentally unjust and un-American: to create a permanent racial sub-caste and undermine the promise engraved on the front of the United States Supreme Court Building – “equal justice under law.” From the time of our nation’s founding, citizenship has been conferred on all those born on U.S. soil, without regard to characteristics such as bloodline or lineage, with the tragic exceptions of the Dred Scott decision – denying citizenship to those of African descent – and the historical denial of citizenship to certain Native Americans.