Trump and Birthright Citizenship

In raising the birthright citizenship issue, President Trump handled it in his characteristic clumsy and half-assed manner. In response, the #NeverTrump media took advantage of his inarticulateness to dishonestly characterize Trump as a dictator who believes he has the power to edit the Constitution. In fairness to the left – something that is not reciprocal – I have to admit that Trump did APPEAR to be saying that he could amend the Constitution by Executive Order. This requires a bit of explaining, however.

To the question, can Trump override the Constitution with an Executive Order? No, he cannot. However, can Trump start a process that could change the interpretation of the Constitution to achieve his goal. The answer to that is “yes.”

Trump critics say that the words of the Fourteenth Amendment, that provides the birthright, is clear. According to them, anyone who can read will understand it and know that it is impossible for the right to be changed without going through the complicated amending process. So, the first thing we need to do is read the relevant portion of the 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.”

The Fourteenth Amendment was challenged in 1898 by a Chinese couple who wanted their child to be declared a citizen of the United States even though they were not citizens. The Supreme Court decided in their favor. End of subject.

Oh … not so fast. There is that phrase which requires that the newborn, and presumably the parents, be “subject to the jurisdiction” of the United States. Many constitutional scholars interpret that as meaning that the parents must be legally subject to the laws and rights of the country. It is very arguable that those residing in America illegally are NOT within the legal jurisdiction of the country.

We use the word “jurisdiction” to mean both a physical area within a boundary AND an authority established by a legal relationship. If the Fourteenth Amendment means a physical place, then everyone residing within those boundaries is covered. If it means a legal authority and responsibility, the Amendment may not apply to illegal residents.So, which meaning is accurate? We do not know because the Supreme Court has never been asked to interpret that question. The aforementioned Chinese couple were legal residents – albeit not citizens – of the United States.

Can Trump end birthright citizenship for illegal aliens with an Executive Order, as he wishes to do? Not in the literal sense.

However, he can issue such an Order. It would most certainly be challenged in the federal courts. Some federal judge would most certainly issue an injunction to stop the Order from being implemented until the question could be decided by the Supreme Court. It would be up to a majority of the nine justices to decide – interpret the meaning – of the phrase “under the jurisdiction.”

If they decided that it did not apply to the newborn of illegal aliens, Trump will have won his point.

You see, the Constitution can be changed apart for the amending process. It can not only be changed by the Supreme Court, it is an established practice. The power to interpret the meaning of the Constitution – first established by Marbury v. Madison – is the power to give specific meaning, or even change the meaning, of the text. In fact, the establishment of the power of “judicial review” depended on the Court’s interpretation of language.

Virtually all progress in civil rights for blacks came about because the Supreme Court changed the meaning – changed the interpretation — of phrases in the Constitution. The infamous Dred Scott decision of the Chief Justice Taney court was overturned because the interpretation of the Constitution was changed. Language and decisions that gave states the right to maintain slavery was reversed because the Supreme Court changed the meaning and relative importance of the unchanged words.

So, while Trump cannot capriciously change the current interpretation of the Fourteenth Amendment, he can provoke a court case that would resolve a question that is currently unresolved. Those parents who are in America legally – though not citizens – would still be covered by the birthright concept. To change that would require an amendment.

It is a pity that Trump did not present his argument in a more articulate fashion and that his critics resorted to political demagoguery to misinform, rather than educate, the public.
So, there ‘tis.

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