Donald Trump’s now infamous retort to Chuck Todd claiming that by deporting all illegals, Trump would be breaking up families and attempting to deport people with birthright citizenship. Trump told Todd that he would keep the families together, “but they have to go.” I can’t remember a time when one statement has caused so much angst.
Robert Tracinski at The Federalist argues that deporting birthright citizens would be a direct assault on the Constitution and “the thousand year history of English common law.”
He says to do so “requires precisely the sort of thing conservatives are supposed to be against.” He explains that at the time of the founding, America embraced birthright citizenship — that “for the Founders, rejecting jus soli or birthright citizenship would have meant either greatly restricting the growth and expansion of the new nation or, more likely, creating a system in which there was a large and growing subpopulation of people who were disenfranchised in the land of their own birth. An idea totally incompatible with a government based on the consent of the governed.”
Tracinski then moves on to the 14th Amendment, which is the centerpiece of the argument for birthright citizenship. The 14th Amendment was the second post-Civil War amendment and was written to bestow citizenship on the freed slaves.
Like Tracinski, I too argued that Trump couldn’t just deport “birthright citizens.”
So now, I am here to eat crow, as it were. I thought I recalled the 14th Amendment sufficiently to disagree with Trump. I was wrong — so are Tracinski and anyone else who holds up this amendment as proof that these illegals are in fact citizens.
And of course it took my favorite and most knowledgeable constitutional scholar, Mark Levin, to remind me of this.
The 14th Amendment, ratified July 9, 1868, reads: “Section 1: 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.”
If one wishes fully to understand the Constitution, one must also read what the Founders said and wrote regarding it. This is what is called original intent. By doing so one can glean not only what they wrote but the motive behind it — many letters the founders wrote to each other and of course the Federalist Papers. In short, go back to the source.
And Levin did just that. He writes that Senator Jacob Howard (1805-1871) authored the citizenship clause of the 14th Amendment. “He [Howard] told us what he meant. He defined who would fall within the jurisdiction of the United States.”
This is what Howard said as referenced by Mark Levin:
“Every person born within the limits of the United States, subject to their jurisdiction, [meaning the states — their jurisdiction] is, by virtue of natural law and national law, a citizen of the United States. This will not, of course, include persons 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 every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great issue in the jurisprudence and legislation of this country.”
Senator Lyman Trumbull (1813-1896), Chairman of the Senate Judiciary Committee, supported Howard, contending that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else … subject to the complete jurisdiction of the United States.”
Well, it doesn’t get much clearer than that. There can be no question of his intent and no longer any question of what he meant by “and subject to their jurisdiction.” In other words, Levin writes: “You can’t self-immigrate. You can’t claim jurisdiction because you happen to walk into the United States,” and you can’t magically become a citizen if both your parents have fidelity to another nation.
So shame on me for not looking more closely at the amendment and just assuming the amendment had not been bastardized like everything else in the Constitution. Thank you Mark Levin for setting me straight.
And who knew The Donald would get it right? But he did, whether he knows it or not.