Michael Anton has caused a furor by suggesting that birthright citizenship is not required by the US Constitution, as Fuzzy Slippers has previously discussed on this blog. Anton is quoted as having said this on Tucker Carlson’s show:

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.

Reasonable people can certainly differ on whether that is the case or not. But Anton also said this:

…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. . . .

I have discussed the issue of birthright citizenship on my blog in some detail in this post written four years ago. This is not just Anton’s issue; the question has been debated for quite some time and the anti-birthright side has made a case that has at least some plausibility, whether you agree with them or not.

As Fuzzy has pointed out, one of the arguments being mounted against Anton is that he misquoted a legislator named Jacob Howard who was involved in the original debate concerning the 14th Amendment:

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’s very difficult to know what Howard actually said because it’s a contemporaneous rendition of what was apparently an oral statement. Here’s some further context:

Howard also participated in debate over the first clause of the Fourteenth Amendment to the United States Constitution, arguing for including the phrase and subject to the jurisdiction thereof specifically because he wanted to make clear that the simple accident of birth in the United States was not sufficient to justify citizenship. Howard said: “[The 14th amendment] 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, but will include very other class of person.”

Despite his intention, the amendment has since been interpreted to guarantee citizenship to every person born in the United States.

So Howard was against birthright citizenship in general, at least according to that site, which was not written in response to the Anton controversy. And here is part of Anton’s argument on the subject in the Claremont Review of Books:

But if that is what was meant, the language would have to read “who are foreigners OR aliens who belong …” To get to the meaning insisted upon, one must not merely add “or” after foreigners, one must also delete both commas. Getting rid of just the first one will not do.

But that’s not what’s in the text. What is there is a list missing its final conjunction. Apples, oranges, bananas. Remembering my high school English, I simply added one for the reader. Apples, oranges, [or] bananas.

It is necessary to note that this quote (and most of those that follow) come from the Congressional Globe, an ancestor to the Congressional Record, which records Congressional debates. Unless otherwise noted, all the quotes that follow are from the Globe’s account of the Senate the debate on the 14th Amendment, May 30th, 1866. They do not purport to be exact transcripts, especially with regard to punctuation. So to be certain we really know what Senator Howard was trying to say, we have to read the whole debate and place his comment in context.

Senator Trumbull says that “subject to the jurisdiction” means:

not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States. [Emphasis added.]

There’s much much more at the link about the historical context of the entire debate about the 14th Amendment and whether birthright citizenship was meant to be included in it; well worth reading.

But to bring us to the present, it is also interesting to note that the US is nearly alone among first-world, highly developed countries in having such a rule:

To discourage birth tourism, Australia, France, Germany, Ireland, New Zealand, South Africa, and the United Kingdom have modified their citizenship laws at different times, granting citizenship by birth only if at least one parent is a citizen of the country or a legal permanent resident who has lived in the country for several years…

Irish nationality law included birth citizenship until the 27th Amendment was passed by referendum in 2004. The amendment was preceded by media reports of heavily pregnant women claiming political asylum, who expected that, even if their application was rejected, they would be allowed to remain in the country if their new baby was a citizen. Until 2004, Ireland was the last European country to grant unconditional birthright citizenship.

Only Canada of all the developed countries has a rule about birthright citizenship that resembles ours.

Whatever one’s opinion on the subject, this is certainly a topic that should be able to be debated without name-calling. And yet name-calling seems to be the favorite debate technique of a great many people these days. And if Anton is “evil” for saying what he said, then I guess that Australia, France, Germany, Ireland, New Zealand, South Africa, and the United Kingdom are all evil too.

And here I thought Europe was supposed to be so wonderfully progressive.

Anton also suggested that Trump might do this via executive order. Of course—as Anton states—if Trump tried that, there would immediately be a court challenge. Although Trump might indeed lose that challenge, it certainly would compel SCOTUS to clarify the issue, a process which has its own merits.

I believe, however, that a better approach would be a statute passed by Congress. This will almost certainly not occur, though, for the same reasons that a previous bill introduced by Vitter (which I discussed in my 2014 post on the subject) never went anywhere, which is basically that Congress lacks the stomach for it. If such a bill were to be passed, however, it would also be challenged in the court system and would almost certainly ultimately go to SCOTUS for clarification on its constitutionality.

The safest route would be a constitutional amendment. This is quite difficult to accomplish, of course, but it would be the answer to those who believe that the Constitution’s 14th Amendment is properly read as requiring birthright citizenship even for the children of illegal aliens and/or so-called birth tourists.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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