Questioning Birthright Citizenship isn’t “an Arcane, Legal Debate,” It’s Just Bonkers

Some Things Are a Matter of Debate…But Others Are Made-Up Nonsense. Can the media tell the difference?

With Enough Money, You Could Pay a “Legal Expert” to Say Just About Anything. But that doesn’t mean you should.

For years now, some conservative think tanks have hired armies of so-called “legal experts” to create fog around the citizenship clause of the 14th Amendment. The point of this fog is not to educate the public on constitutional law, or clear up mistakes in constitutional interpretation, but to cast doubt on the legitimacy of citizenship for millions of Americans. The media can choose to participate in these efforts, or it can just stop.

The 14th Amendment says that:

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.

Bigotry loves ignorance, and in order to accomplish their political goals, some conservative commentators have created a dense, double-speak fog around the phrase “subject to the jurisdiction thereof.” Knowing that the word “jurisdiction” sounds confusing and intimidatingly legalistic, they have decided to use it as a fog machine to cast doubt. In the bonkers, alternative-reality of conservative think-tanks, this meaning of this phrase in the modern context is obscure and, therefore, open to debate. Because this phrase sounds complicated and arcane, it’s the perfect vehicle through which to spread confusion and mis-information.

Conservative “legal experts” want to confuse you into thinking that immigrants aren’t “subject to the jurisdiction” of the United States government. Because immigration laws are new, according to alternative-reality land, the vistas for legal interpretation are wide open, unbound by the past. We are therefore free to interpret “subject to the jurisdiction” of the United States government in any way we please. Except that none of what I wrote above is true.

First, there are obvious problems with any interpretation of the US Constitution stating that the US government doesn’t have jurisdiction over a section of the US population. This is a very disturbing idea in a country supposedly founded on law and order. It would essentially place a large number of people outside the jurisdiction of any federal agency and possibly grant them something akin to immunity. If this sounds totally bonkers, it’s because it is. Let’s say someone moves from Jamaica to the United States to teach at a university. That person should be subject to the laws of the United States like everyone else.

Second, the category of persons excluded from jurisdiction at the time of the drafting of the 14th Amendment was well-established and pretty limited. For example, diplomats and their children. One might argue that as the seasons change, so does the meaning of the term “jurisdiction”. Yet, down through hundreds of years of common law, being inside the territory of a state meant that one was subject to its jurisdiction, unless one was in the service of a foreign crown, like a diplomat. In case there was any confusion, the Supreme Court specifically reiterated at great length in Wong Kim Ark that persons born to immigrants in the US are citizens. There’s been no “morphing” of the meaning of jurisdiction; today, it means the same thing that it did in Calvin’s Case in 1608. You are born into your allegiance. A person born in, oh, I don’t know, let’s say, California is therefore born owing allegiance to the United States unless they are the children of diplomats. They are citizens, even though they may later leave the country to, say, go to high school in Canada.

Finally, some conservative commentators insist that we should change our citizenship laws because Europe does things different. I’ll just leave that there.

So if you like, grab a glass of wine and lets debate if “jurisdiction” should mean something different today. Let’s publish a philosophical treatise on the subject. But there’s nothing to debate when it comes to birthright citizenship under current law. And since there’s no debate, arcane or otherwise, there’s really no need for a Newsweek op-ed on the subject, is there?

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