Former Trump Adviser Michael Anton: Constitution Does Not Require Birthright Citizenship
Michael Anton, a lecturer and research fellow at Hillsdale College and a former national security official in the Trump administration. Anton also was the pseudonymous author of The Flight 93 Election article that cause a stir prior to the 2016 election.
Earlier this month, Anton penned an op-ed in the Washington Post in which he argued that birthright citizenship was not a constitutional requirement. The op-ed generated a great deal of discussion, prompting Anton to explain and defend his argument to critics on both the left and the right.
In his op-ed, Anton writes, Citizenship shouldn’t be a birthright:
The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.. . . . Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment. The purpose of that amendment was to resolve the question of citizenship for newly freed slaves. Following the Civil War, some in the South insisted that states had the right to deny citizenship to freedmen. In support, they cited 1857’s disgraceful Dred Scott v. Sandford decision, which held that no black American could ever be a citizen of the United States.
A constitutional amendment was thus necessary to overturn Dred Scott and to define the precise meaning of American citizenship.
That definition is the amendment’s very first sentence: “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 amendment clarified for the first time that federal citizenship precedes and supersedes its state-level counterpart. No state has the power to deny citizenship, hence none may dispossess freed slaves.
Anton goes on to make a distinction between “subject to the jurisdiction” and “subject to American law.”
Second, the amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else” — that is, to no other country or tribe.
Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
Yet for decades, U.S. officials — led by immigration enthusiasts in and out of government — have acted as though “subject to the jurisdiction” simply means “subject to American law.” That is true of any tourist who comes here.
The framers of the 14th Amendment added the jurisdiction clause precisely to distinguish between people to whom the United States owes citizenship and those to whom it does not. Freed slaves definitely qualified. The children of immigrants who came here illegally clearly don’t.
Anton offers the following solution:
The problem can be fixed easily. Congress could clarify legislatively that the children of noncitizens are not subject to the jurisdiction of the United States, and thus not citizens under the 14th Amendment. But given the open-borders enthusiasm of congressional leaders of both parties, that’s unlikely.
It falls, then, to Trump. An executive order could specify to federal agencies that the children of noncitizens are not citizens. Such an order would, of course, immediately be challenged in the courts. But officers in all three branches of government — the president no less than judges — take similar oaths to defend the Constitution. Why shouldn’t the president act to defend the clear meaning of the 14th Amendment?
The response was rapid and fiery, with Anton being called every name in the book: racist, xenophobic, bigoted, white nationalist, un-American, and etc.
The Washington Post, in a separate article, provides an overview of the criticism Anton faced from both the left and the right. Much of this criticism is focused on the insertion of a bracketed “or” in a quote.
Here is the Editor’s Note on Anton’s WaPo op-ed:
Editor’s note: Michael Anton inserted the bracketed word “[or]” into a statement made by Michigan Sen. Jacob Howard during debate of the 14th Amendment on May 30, 1866, as recorded in the Congressional Globe. Anton wrote that Howard “clarified that the amendment explicitly excludes from citizenship ‘persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.’ ” Writers before Anton have made the same insertion, and Anton stands by his interpretation of Howard’s statement and maintains that the insertion of the word clarified rather than altered its meaning. You can read his full explanation in a blog post subsequently published by the Claremont Review of Books. Others believe the inserted word changes rather than clarifies the meaning of the quotation. Because the quotation can be read a different way, we should have asked Anton to publish it unaltered and then explain his interpretation rather than publishing it with the inserted word.
It was not well received. At all. On the left, historians who study the 14th Amendment mocked his history at length on Twitter. On the right, the American Conservative — usually sympathetic to immigration restrictionism — ran an op-ed from a scholar at the Cato Institute, which does not share those views. And even the Federalist, known for the anti-anti-Trump tone of its writing, published a piece with the headline “Ending Birthright Citizenship Will Make Republicans Look Like the Party of Dred Scott.”
So why was Anton’s argument a bridge too far? Part of it was the radicalism of his proposal — asserting flatly that the president could end birthright citizenship with a wave of the pen and that “judges faithful to their oaths will have no choice but to agree with him.”
But part of it is because of the awkward position ending birthright citizenship holds on the restrictionist agenda. It’s always on the agenda — and many restrictionists see it as an important long-term solution to the ongoing problem of unauthorized immigration. But it’s never very close to the top, because it’s difficult as well as politically sensitive.
The blowback prompted Anton to write a response to his critics.
I expected the reaction to a recent op-ed I published calling for the end of birthright citizenship to be cantankerous. I even expected it to be hysterical—from the Left. I did not expect self-described “conservatives” to be just as hysterical as the Left, and to use precisely the same terms. “Nativist.” “Xenophobe.” “Bigot.” “Racist.” “White nationalist.” “White supremacist.”One point I’ve been making for a while is that one faction of “conservatism”—let’s call it the anti-Trump wing, although the phenomenon long predates Trump—sounds and acts with every passing year more like a “conservative” subdivision of the Left. Like the Left, they don’t want to debate; they want to call those they disagree with evil. For what are those epithets supposed to mean, if not “evil”?Whether or not to have birthright citizenship for the children of noncitizens is one such fundamentally political question. But like so many other political questions, this one is ruled out of bounds by scholars, lawyers, experts, pundits, and professional moralists.The American people did not willingly, knowingly, or politically adopt birthright citizenship. They were maneuvered into it by the Left and by the Left-allied judiciary. They’ve never debated it or voted on it. They’ve simply been told that it’s required by the Constitution.
He goes on to address concerns raised by his critics about his reading of the Howard quote.
Anton also appeared on Tucker Carlson to explain his position.
Here’s a partial transcript of this Tucker segment.
TUCKER CARLSON: Most of us grew up learning that the American Constitution guarantees birthright citizenship; in other words anybody born in this country even to parents who are here illegally or simply on vacation is a US citizen and due all the benefits of that for life. But is that really what the Constitution says?Michael Anton does not believe it says that. He’s a lecturer at Hillsdale College and a former Trump advisor just wrote a piece in The Washington Post arguing that birthright citizenship is not a constitutional requirement Michael Anton joins us tonight. Michael, thanks all for coming on. I’m amazed that Post printed this piece. Good for them. You took a lot of heat for it; people were shocked by the idea that you would even question this but you made your case partly on legal grounds. Why does the Constitution not say what we’ve been taught it says?MICHAEL ANTON: You have to read the whole 14th Amendment. There’s a clause in the middle that people ignore or they misinterpret — “subject to the jurisdiction thereof” — ‘thereof’ meaning of the United States. What they’re saying is, if you’re born on US soil subject to the jurisdiction of the United States, meaning you’re the child of citizens or the child of legal immigrants, then you are entitled to citizenship. If you’re here illegally, if you owe allegiance to a foreign nation, if you’re the citizen of a foreign country, that clause does not apply to you.If you read the debate about the ratification of the 14th amendment, all the senators who are discussing what this is meant to do and what it means are very clear on this point; I tried to point that out. I expected the left would blow up and get angry which they did. What I didn’t expect, at least not to this extent, and what was very disappointing was how angry the so-called conservative intellectuals got with me, and they essentially said any opposition to birthright citizenship is racist and evil and un-American. . . .
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