President Trump’s Executive Order on Birthright Citizenship is Unconstitutional
Section 1 of 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. Trump’s defenders argue that children born of illegal immigrants in the United States have never entered into a social compact that makes them citizens of the United States protected by U.S. law.
Samarth Desai, a second year law student at Yale Law School has a devastating response to this claim, which was recently argued for by Georgetown Law Professor Randy Barnett and University of Minnesota Law Professor Ilan Wurman published in an op-ed in the New York Times. Desai’s article, with which I totally agree appears below.
Birthright Citizenship: A Test Case
Samarth Desai
President Trump’s birthright-citizenship executive order is illegal and unconstitutional, and no “allegiance-for-protection theory” can save it.
No one doubts that children born on American soil to unauthorized migrants were “born . . . in the United States.” So if these children are not birthright citizens, it must be because they were not “born . . . subject to the jurisdiction” of the United States despite being born under the American flag.
Two prominent scholars claim, in the New York Times and elsewhere, that the children of unauthorized migrants were not born “subject to the jurisdiction” of the United States because their parents disobeyed the laws by entering illegally. According to these scholars, (1) jurisdiction depends on obedience (as a condition of a theoretical social compact), and (2) the disobedience of a parent can be imputed to a child. Unauthorized migrants “gave no obedience or allegiance to the country when they entered,” these scholars say. “[T]hey and their children are therefore not under the protection or ‘subject to the jurisdiction’ of the nation.”
This allegiance-as-obedience theory has an obvious and simple test case: Confederate rebels and their children.
If Professors Barnett and Wurman are right, then Confederate rebels and their children would also not have been “subject to the jurisdiction” of the United States, and it would have been perfectly constitutional to deny or revoke their birthright citizenship. Confederate rebels were, after all, paradigmatically disobedient. In the words of the Prize Cases (1863), they had “declared their independence,” “cast off their allegiance,” “organized armies,” and “commenced hostilities” against the United States. True, Confederate rebels, unlike unauthorized migrants, were at one point citizens, but this distinction is irrelevant if jurisdiction requires the existence of a social compact conditioned on obedience to the laws.
The Barnett-Wurman theory fails this easy test case. In 1867, the Fourteenth Amendment’s framers—John Bingham among them—were emphatic that Confederate rebels remained “allegiant” and therefore “subject to the jurisdiction” of the United States despite having flagrantly and treasonously disobeyed the laws. In doing so, they expressly repudiated the allegiance-as-obedience theory; obedience was a duty of citizenship, not a condition. And whatever the sins of the fathers, absolutely no one (as far as I can tell) suggested that the children of Confederate rebels could be stripped of their birthright citizenship because of what their parents had done.
Confederate Rebels
The impetus for this key 1867 episode, almost entirely ignored until now, was an effort to suspend the citizenship of a wide swath of former Confederate rebels. Language proposed by Thaddeus Stevens provided
“[t]hat all persons who, on [March 4, 1861], were of full age, and who at any time held office, either civil or military, under the government called the “Confederate States of America,” or who swore allegiance to said government, are hereby declared to have forfeited their citizenship and to have renounced allegiance to the United States . . . .”
Ohio’s John Bingham declared the bill containing this provision “a clear, palpable departure from the intent and letter of your constitutional amendment”—that is, the Fourteenth Amendment, which Congress had proposed to the states just six months earlier and of which Bingham had been one of the principal authors. “[T]he Congress of the United States has no color of authority for providing by law,” he explained, “that a million persons, natural-born male citizens of this Republic and res
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
