Leftists concocted an ingenious game of judicial supremacism that creates a one-way ratchet for their policy outcomes – heads they win, tails they win. Yet the “conservative” legal community chooses to play this game. Nowhere is this more evident than in the debate over so-called birthright citizenship, where the Left cherry-picks one non-binding footnote of a terrible decision misinterpreting another bad decision that violates previous precedent, the plain meaning and purpose of the 14th Amendment, sovereignty, and the social compact while collectively ignoring endless uninterrupted case law indicating the opposite – all for the political outcome of giving our sacred birthright to illegal aliens.
The case liberals and pseudo-conservatives point to for the concept of rewarding invaders with citizenship is the Wong Kim Ark decision in 1898. But it’s important to note that even the notion of adopting automatic birthright citizenship for legal immigrants as a constitutional imperative (I support it as a matter of policy) was clearly an activist decision overturning precedent.
The truth about the 14th Amendment and citizenship
Rep. James F. Wilson, R-Iowa, the chairman of the House Judiciary Committee back in the 1860s who helped draft the 14th Amendment, spoke emphatically that it was “establishing no new right, declaring no new principle.” “It is not the object of this bill to establish new rights, but to protect and enforce those which belong to every citizen,” declared Wilson in 1866.
The notion that an amendment designed to grant freed slaves who lived here for centuries and had no allegiance to any other jurisdiction the basic rights of American citizens would be used as a tool to prevent Congress from regulating citizenship for immigrants of all stripes is scandalous.
The first sentence of the 14th 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.” We need not speculate what “subject to the jurisdiction thereof” means. As Sen. Lyman Trumbull of Illinois, the chairman of the Senate Judiciary Committee, said during the debate over the 14th Amendment, “subject to the jurisdiction” of the United States means subject to its “complete” jurisdiction, “not owing allegiance to anybody else.” Of course persons present inside American territory are subject to our partial jurisdiction in the sense that they have to obey our laws and are subject to criminal prosecution for disobeying our laws. But when congressional drafters added the second phrase of jurisdiction to the citizenship clause, they were clearly limiting citizenship to those who, in the words of one of the key drafters, were subject to “complete” jurisdiction as Americans.
Sen. Jacob Howard of Michigan, the principle author of the citizenship clause of the 14th Amendment, explicitly said that candidates for citizenship must be born here and not owe allegiance to any another authority. Echoing Trumbull, he said “a full and complete jurisdiction” means “the same jurisdiction in extent and quality as applies to every citizen of the United States now.” He made it clear that allegiance “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.”
It’s not until an immigrant completes his naturalization process that he swears an oath with the emphatic commitment to “absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign … state.” The citizenship oath with that verbiage has been in use since the Founding of the country. Therefore, when the framers of the 14th Amendment spoke of “full and complete” jurisdiction, “the same jurisdiction in extent and quality as applies to every citizen of the United States now” and “not owing allegiance to anybody else,” they were clearly defining a legal permanent resident who is prepared to become a citizen. That state of being is regulated by the naturalization process and is subject to congressional regulation. But certainly, we can agree this cannot apply to illegals or those on temporary visas.
The body of case law on citizenship and sovereignty
There’s no more authoritative exposition of the 14th Amendment than the first court case after its ratification, the 1872 Slaughterhouse cases. Justice Samuel Miller confirmed that “its main purpose was to establish the citizenship of the negro” and that “the phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States” (emphasis added).
Writing for the court in Elk v. Wilkins (1884), Justice Horace Gray asserted that the phrase “subject to the jurisdiction” is “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance” (emphasis added).
Justice Gray’s opinion was guided, in part, by an 1873 legal opinion from Attorney General George Henry Williams, a senator at the time the 14th Amendment was ratified, stating that the amendment did not mean to include all aliens:
The word jurisdiction must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. . . . Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. (Emphasis added.)
Thus, it was obvious that for the first few decades of the 14th Amendment, Congress never relinquished any power over regulating the citizenship of children born to legal immigrants, much less visitors or those here without consent.
Fast-forward 12 years, and the same Justice Gray who wrote this opinion inexplicably reversed course in Wong Kim Ark and created a hard floor out of the 14th Amendment to grant citizenship to all children of legal immigrants from all parts of the world.
As a matter of policy, it’s fine to grant automatic citizenship to all children of all legal immigrants, but this was clearly an activist opinion, divorced from the entire tradition of our Founding and the practice in the country for the first 30 years of the amendment. If our modern birthright citizenship “legal scholars” would bother to read the compelling and scholarly dissent of Chief Justice Fuller, they’d see that.
The very source of birthright citizenship made it clear that it doesn’t apply to illegal immigrants
Now, let’s put this academic debate over birthright for legal immigrants on the shelf. Justice Gray was unequivocal that this would never apply to those here without our consent. Thus, the very source the Left uses to give our birthright to illegals actually refutes their claims.
Among the many parts of Wong Kim Ark that the TV scholars conveniently omit is when Gray qualifies the mandate to grant citizenship to children of those immigrants living here “so long as they are permitted by the United States to reside here.” There it is. That’s the end of their argument based on this case.
Also, Gray used the term of art “domiciled” 12 times throughout the opinion when defining those covered, in his view, by the Citizenship Clause. In my previous piece, I proved from 130 years of case law that those here against our consent are literally considered to be off our soil. That precedent actually began with Justice Gray himself six years earlier in Nishimura Ekiu v. U.S. when he told us what “domiciled” does not mean.
Pursuant to the Chinese exclusion acts, unfortunately, Chinese immigrants were deemed inadmissible, aka illegal immigrants who had no consent to enter. Justice Gray was emphatic: “It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government.”
There were therefore many important principles written by the very man from whom the Left erroneously gleans the “right” of birthright citizenship for the children of illegal aliens:
1) The political branches unquestionably can exclude anyone for any reason, even, unfortunately, for hateful reasons.
2) The courts have no jurisdiction over the issue of sovereignty.
3) Someone not admitted lawfully cannot be considered domiciled in the country. He references a domiciled legal permanent resident who is not naturalized, then refers to a temporary visitor who is not domiciled; finally, he refers to an illegal alien who most certainly is not domiciled.
Furthermore, in Wong Kim Ark, Justice Gray limited the scope of his birthright fiction to children of “resident aliens” who were under “the allegiance and under the protection of the country.” There is no way an illegal alien can be considered as owing allegiance to the United States.
The point is even stronger once we understand that “allegiance” and “protection” are designed as a reciprocal relationship between citizens and the government of the civil society – that in return for their allegiance, they receive protection. As the court said in Minor v. Happersett (1874) in the context of citizenship: “Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.”
Yet now we are all being told that our heritage, history, and wealth of case law on sovereignty mean nothing, all because a mindless, activist, and non-binding footnote from Justice Brennan in Plylor v. Doe (1982) incomprehensibly included illegal aliens in the judgment of Wong Kim Ark. If “conservative” legal scholars acquiesce to this double game of judicial black magic, they deserve to live under the judicial supremacy and all its vices.
Some are accusing the president of trying to repeal the 14th Amendment. But in fact, it is they who are not only repealing our Constitution but our Declaration of Independence, which gives the citizens of this society the right to government “by the consent of the governed.”
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.