Birthright Citizenship and How All Amendments Aren't Created Equal

Naturalization ceremony participants raise their hands and hold American flags as they are sworn-in as new U.S. citizens Monday, March 27, 2006, during the Naturalization Ceremony at the Daughters of the American Revolution Administration Building in Washington. President George W.Bush addressed the audience, saying that each generation of immigrants brings a renewal to our national character and adds vitality to our culture. White House Photo by Eric Draper


This morning the big buzz is President Trump’s statement to the effect that he intends to end birthright citizenship.

Trump told “Axios on HBO” that he has run the idea of ending birthright citizenship by his counsel and plans to proceed with the highly controversial move, which certainly will face legal challenges.

  • “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said, declaring he can do it by executive order.
  • When told that’s very much in dispute, Trump replied: “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”
  • “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,” Trump continued. “It’s ridiculous. It’s ridiculous. And it has to end.” (More than 30 countries, most in the Western Hemisphere, provide birthright citizenship.)
  • “It’s in the process. It’ll happen … with an executive order.”

Can he do it? I don’t know. I suspect that any executive order that tries to do this will eventually be invalidated by the Supreme Court based on Article 1, Section 8, of the Constitution. It would be nice if the Supreme Court didn’t take the easy way out, though, because I welcome a full-blown challenge to the idea of birthright citizenship simply to put the idea to rest.

My own view is that the legislative history of the 14th Amendment makes it very clear that the purpose of the citizenship provisions were aimed at eradicating the Dred Scott decision which ruled that black Americans could never be citizens. At the time of the ratification of the 14th Amendment, there was no such thing as illegal immigration. The single Supreme Court case to address the issue directly dates from 1898 which concurrently held that members of Indian tribes were not citizens. Some confidently declare that the law is settled:

It think that argument is utter bullsh** because the concept of marriage is thousands of years old and the Supreme Court invalidated that. And textualism clearly means interpreting the law as it was meant to be read…this is how Scalia arrived at his decision in District of Columbia vs. Heller. He looked at how firearm ownership was viewed at the time the Second Amendment was drafted and went from there. A similar analysis of birthright citizenship would have difficulty passing that test. Beyond that, if Congress passed a law regulating birthright citizenship, it is easy to imagine that there would be a strong undercurrent among the five conservative Justices to defer to that decision.

This is a more measured take, in my view, of where we are:

While I have sympathy for the argument that birthright citizenship helps us avoid the problems that several nations, like Germany, have made for themselves in creating a permanent multi-generational class of non-citizen residents, one can’t be blind to the violence that this “get permanent residence by dropping a kid” loophole in our immigration policy doesn’t create a perverse incentive to violate those laws. I don’t claim to have any insight on how the Supreme Court would rule on a law passed by Congress to do way with birthright citizenship but I think it would not be a slamdunk in either direction and for that reason both sides might want to avoid finding out what the answer is.

This brings me to my main point which is how constitutional provisions and amendments are treated by the left.

The rule seems to be that if they like the amendment then it not only means exactly what they say it does but it is inviolable. If they don’t like it, well, then it is horrible and needs to change. The apportionment of senators at two per state and the Electoral College are their main targets right now. They’ve already vanquished the ability of the states to regulate the “time, place, and manner” of elections so I don’t know how this battle will end.

But let’s look at a couple of amendments from the Bill of Rights and see how the left treats them.

Start with the First Amendment. Even though the First Amendment expressly prevents government regulation of speech, the left is attempting to legislate some arguments out of existence by way of “hate speech” laws. To date they haven’t been terribly successful on the legislative front but they have basically won the war on college campuses and on social media. The events of the past week have seen efforts by the left to blame political speech for the spate of simulated mail bomb attacks as well as the killings at a Pittsburgh synagogue. The free speech provisions of the Constitution not only predate birthright citizenship but are much more vital to a free society, yet the First Amendment is up for grabs.

It is difficult to know where to even start when addressing the disrespect meted out to the Second Amendment. The text here is clear and yet legal restrictions on the purchase, transport, and possession of firearms abound. And there is a constant assault upon the vestigial right that has survived. It seems to me that the “does anyone need a machinegun?” applies equally to “does anyone need to illegally cross into the United States so they can ensure their child is a US citizen?”

So I’d be a lot more amenable to agreeing that the Fourteenth Amendment says exactly what its proponents say it says if those same people were not trying to restrict free speech and outlaw firearms. I’d really be more sympathetic if they were even interested in applying the same test to all of the Fourteenth Amendment because you have to be something of a moron to think that laws are applied equally based on either sex or race. But these people aren’t and I don’t see the value in unilateral disarmament or affording the text of this amendment any more deference than that afforded to any other amendment or part of the Constitution.

Like what you see? Then visit my story archive.

I’m on Facebook. Drop by and join the fun there.