It's Your Birthright, Too

Today the New York Times published an essay by Randy Barnett and Ilan Wurman titled “Trump Might Have a Case on Birthright Citizenship.” Barnett and Wurman are conservative law professors whose specialty, more than any particular area of law, is Overton Window relocation services.

About 15 years ago, when the Affordable Care Act first arrived before Congress, a fringe legal argument emerged: the idea that the individual insurance mandate somehow exceeded Congress’s power to regulate interstate commerce. Most lawyers and academics rolled their eyes - modern insurance obviously involves commerce that crosses state lines. But Randy Barnett, writing primarily for The Volokh Conspiracy, took it upon himself to build the argument out. Conservative lawyers, seeing an opportunity to attack Obamacare, circled the wagons, and the argument ultimately won at the Supreme Court (though the law was upheld on other grounds). Barnett and his ilk had taken a fringe argument and turned it into the law of the land.

Now he arrives in the pages of the New York Times, with a different argument but the same mandate: to manufacture legitimacy for an unserious constitutional theory.

The 14th Amendment reads, in relevant part: “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.” Many constitutional provisions are full of vagueness, antiquated language and historical uncertainty. This is not one of them. The only way to argue that this does not require birthright citizenship is to take the phrase “subject to the jurisdiction thereof” and load it with so much ambiguity as to render the entire clause meaningless. 

So what does “subject to the jurisdiction [of the United States]” mean? The literal interpretation would simply mean anyone subject to American laws – i.e., just about everyone in the country. But Barnett and Wurman say this leads to “anomalies”: the birthright citizenship clause is generally understood to exclude the children of diplomats, invading armies, and Indian tribes, all of whom are technically subject to American laws in various respects. In reality, those concerns are easily resolved: diplomats have diplomatic immunity, invading armies are subject to the laws of war, and the tribes were treated as separate sovereigns at the time of the 14th Amendment’s ratification.

Barnett and Wurman ignore these simple arguments and instead propose to resolve the so-called anomalies by imagining a rule: that what the clause really means is that citizenship attaches to the children of anyone who maintains “allegiance” to the United States. They argue:

So we have taken a very simple rule: if you are born here, with a handful of clear exceptions, you are a citizen - and replaced it with some convoluted bullshit about whether your parents have adequately demonstrated “allegiance” to the United States. This rule is abstract to the point of incoherence. Is someone who crosses a border illegally (or overstays a visa) really demonstrating themselves to be less bound by the law than someone who commits fraud, assault, or murder? What about someone who - just for example - engages in attempted insurrection? How exactly are we to measure the allegiance of every set of parents in this country before bestowing their children with citizenship?

Maybe more damning is how this interpretation would flip the original purpose of the clause on its head. The 14th Amendment, as Barnett and Wurman acknowledge, was intended to grant black Americans citizenship after the Supreme Court’s decision in Dredd Scott v. Sanford purported to strip it from them. Under the test they propose, though, the children of freed slaves would not all qualify. Many, after all, arrived here illegally, after the United States banned the import of slaves in 1808. That is where reactionary legal thought has brought us: reimposing the regimes of the antebellum South so that we can deliver pain unto the outgroup du jour.

What these scholars are proposing, at the end of the day, is to abide by an interpretation of the 14th Amendment that (1) ignores 160 years of precedent, (2) defies the literal meaning of the text, (3) undermines the original purpose of the clause, and (4) is abstract to the point of meaninglessness. If they can accomplish that, if every principle by which law is said to be bound can be rejected, then every right is assailable, none are sacred, and none are safe.