More on Birthright Citizenship and Undocumented Immigrants – Rejoinder to Barnett and Wurman
In a recent blog post, Randy Barnett and Ilan Wurman have responded to my piece and others criticizing their NY Times op ed that had offered partial defense of President Trump’s executive order denying birthright citizenship to children of undocumented immigrants, and migrants in the US on temporary visas. I think they fail to effectively rebut several key points, most notably that their argument – if applied consistently – would also deny birthright citizenship to recently freed slaves – the group the Citizenship Clause of the Fourteenth Amendment was principally intended to protect.
Section 1 of the Amendment grants citizenship to anyone “born … in the United States and subject to the jurisdiction thereof.” Barnett and Wurman argue that only people who have exchanged “allegiance” for “protection” qualify as “subject to the jurisdiction” of the US. As pointed out in my earlier post, freed slaves did not qualify, because they had never made any such exchange. The US government sought to compel their obedience, but did not offer any meaningful protection. To the contrary, it facilitated their subjugation and oppression.
In their response, Barnett and Wurman state that ” enslaved persons brought here against their will were not afforded protection of the law. But obedience and ligeance were demanded of them nonetheless.” The US, they say, owed them protection in exchange. The obvious problem here is that a demand for obedience without any reciprocal provision of protection is not an “allegiance-for-protection” compact. It’s just straight-out coercion in exchange for virtually nothing. One could just as easily say that a Mafia protection racket qualifies as “allegiance-for-protection.” Indeed, the slavery situation was actually worse than that, since the Mafia usually doesn’t impose lifelong forced labor on its victims.
If a mere demand of obedience is enough to trigger “jurisdiction,” than illegal migrants also qualify. After all, the US government certainly demands their obedience to its laws. They can be prosecuted for crimes, subjected to civil suits in US courts, and so on.
At one point, if I interpret them correctly, Barnett and Wurman seem to suggest that the allegiance-for-protection exchange may have occurred when the f
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