President Trump’s recent executive order, “Protecting the Meaning and Value of American Citizenship,” denies that the 14th Amendment grants automatic citizenship to children of illegal aliens born on U.S. soil. Furthermore, it directs the U.S. Department of State and federal agencies not to recognize those children as citizens nor grant them such privileges of citizenship such as being issued U.S. passports.

Numerous scholars have weighed in against the arguments presented in Trump’s birthright citizenship executive order. They claim that a plain reading of the 14th Amendment, along with its historical context and the practice of citizenship both before and after its passage, and the Supreme Court’s decision in U.S. v. Wong Kim Ark (1898) are incontrovertible proof that birthright citizenship is an absolute right under the Constitution.

Indeed, federal District Judge John Coughenour argued that the evidence against Trump’s executive order is so compelling that it “boggled his mind” that any lawyer could consider it constitutional, and issued a temporary restraining order to block its enforcement. But Judge Coughenour is obviously quite unaware of the compelling arguments Professor Edward Erler has been making for decades that the pro-birthright citizenship argument is erroneous. I hope that the lawyers defending Trump’s executive order will make use of them to “unboggle” the judge’s mind.

Professor Erler’s main contention is that the Citizenship Clause of the 14th Amendment does not automatically grant U.S. citizenship to any child born in the United States, regardless of the legal status of that child’s parents. As part of this symposium, he has made the persuasive case that citizenship under the Constitution is fundamentally different from the British common law understanding of allegiance, which dealt with subjects loyal to the king, not citizens whose consent establishes the basis for political rule. Other articles in this symposium so far include an analysis of the Jurisdiction Clause and a focus on the legislative history and original understanding of the 14th Amendment’s Citizenship Clause.

The question of whether birthright citizenship is required by the 14th Amendment is likely to end up, sooner or later, at the Supreme Court. The Court’s opinion in U.S. v. Wong Kim Ark is likely to be the controlling precedent for any judicial determination on whether children born in the U.S. to illegal aliens are entitled to birthright citizenship, as it is its only pronouncement related to this question.

Proponents of unrestricted birthright citizenship argue that Wong Kim Ark is settled law, wherein the Court ruled that a child born in the U.S. to Chinese parents (who were barred at the time from naturalization due to race) was a U.S. citizen. The distinction between the children of legal resident aliens and the children of those who reside in the U.S. illegally, or have entered simply for the purpose of giving birth to establish birthright citizenship (known as “birth tourism”), is an important one. Because of widespread concern about the consequences of illegal immigration, there is now a greater focus on the practice of extending citizenship to the children of illegal aliens.

Strange Readings

Wong Kim Ark relies on a common law understanding of the 14th Amendment’s Citizenship Clause. It cites several very odd cases as proof that, when the language of the Constitution is not sufficiently clear, interpretation must rest not on the original understanding of those who framed it nor on a close reading of the debates surrounding it but upon the common law inherited from England.

The first of these cases is Minor v. Happersett (1874), which challenged a Missouri law denying women the right to vote on the basis that suffrage was one of the privileges and immunities of citizens guaranteed by the 14th Amendment. The first question the Court considered is whether women are citizens under the Constitution. The Court concluded that they are—and in fact were even before the passage of the 14th Amendment:

The Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several states, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community such as a nation is implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association.

In other words, in examining the question of whom the Constitution determines to be citizens, the Court recognized the social contract nature of citizenship. Minor concludes that women are in fact citizens because of their association within the political community for a common purpose, that is, the promotion of their general welfare. Taken on its face, this precedent underscores the notion that the criteria for citizenship includes a recognition of the purposes for which our nation was formed.

The Court’s use of this precedent is therefore suspect, because it asserts that our citizenship is somehow dependent upon our common law heritage, one that governs subjects whose allegiance is owed to the king under the doctrine of jus solis. As Chief Justice Melville Fuller explained in his dissent in Wong Kim Ark, the common law upon which the majority relied for the doctrine of jus solis has no applicability because our Founders rejected all aspects of the feudal character upon which it was based:

The framers of the Constitution were familiar with the distinctions between the Roman law and the feudal law, between obligations based on territoriality and those based on the personal and invisible character of origin, and there is nothing to show that, in the matter of nationality, they intended to adhere to principles derived from regal government, which they had just assisted in overthrowing.

Two other cases cited by the Court as precedent for its determination of citizenship under the 14th Amendment refer more directly to the Court’s reliance on common law, but neither case deals with the question of citizenship.

In Moore v. U.S. (1875), the Court ruled on a question of ambiguity in the rules of evidence. It maintained that when “Congress has not provided, nor any special reasons demanded,” a rule regarding admitting a comparison of handwriting into evidence, the common law ought to govern. While it is a common assertion that our legal system, and indeed our Constitution, is based in the common law, the distinction between the common law doctrine of jus solis and the social contract theory of citizens consenting to join and be governed within a political community is profound. Therefore, the idea that the 14th Amendment’s guarantee of citizenship falls into the same category as an ambiguous rule of evidence is little more than a sleight of hand by the Court.

The final case Wong Kim Ark relies on as precedent is Smith v. Alabama (1888), a case dealing with the state licensing of locomotive engineers, and whether such licensing violated the “dormant” Commerce Clause. The use of this case in Wong Kim Ark is strange, not to say disingenuous. The quoted passage from Smith is,

There is no common law of the United States in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law and subject to such alteration as may be provided by its own statutes…. There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which therefore is gradually formed by the judgments of this Court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority [emphasis added].

Interestingly, the Court in Smith concluded that the common law has no application to the question of whether the Alabama law was a regulation of interstate commerce prohibited by the Constitution. Constitutional construction by the Court has indeed been “influenced” by the language of the common law, but it is limited to “so much of the common law as may be implied in the subject.” Again, since the relevant question is whether the common law regarding jus solis should apply to U.S. citizens—and we believe that question has been clearly answered in the negative—the use of Moore as a precedent in Wong Kim Ark undermined rather than supported the Court’s ruling.

Citizens, Not Subjects

The 14th Amendment was ratified in 1868, and the principal purpose of the Citizenship Clause was to overturn the infamous Dred Scott decision, which found that blacks could not be citizens of the United States, and therefore had no standing to sue in federal courts. The guarantee of citizenship to the newly freed slaves had been legislatively mandated in the Civil Rights Act of 1866, but Radical Republicans in Congress proposed amending the Constitution to ensure that a future Congress could not undo provisions of that legislation. The same members of Congress responsible for securing passage of the Civil Rights Act of 1866 were also those responsible for proposing the 14th Amendment.

Professor Erler has convincingly demonstrated that the Citizenship Clause, which guarantees that “all persons born or naturalized in the United States…are citizens of the United States and of the State wherein they reside,” is in fact given further explication by the phrase “and subject to the jurisdiction thereof.” By a careful reading and analysis of the debates in Congress over both the Civil Rights Act of 1866 and the 14th Amendment, he has provided a compelling and indisputable case that children of illegal aliens are not subject to the jurisdiction of the United States and are therefore not entitled to birthright citizenship.

There is an argument to be made that Congress, under Section 5 of the 14th Amendment, could by appropriate legislation define precisely the contours of birthright citizenship. The historical, legislative, and constitutional evidence would clearly point in the direction of a narrower understanding of birthright citizenship than has been the practice in recent decades. Congress could enact such legislation under the broad doctrine that nations have a right to control their sovereignty—a right that must include the power to determine who can be citizens of the United States. The American people should encourage their elected representatives to do precisely that. Regardless, this exercise of power will likely be subject to judicial interpretation, much like Trump’s recent executive order.

Let us hope that when the Supreme Court rules on the question of automatic birthright citizenship, it is more open-minded than Judge Coughenour; that the Court will remember that we are not subjects owing allegiance to a king; that we have consented to be a free, self-governing people; and that, finally, we are not bound to be ruled by a questionable, even disingenuous, Supreme Court precedent that neither interpreted nor applied prior rulings correctly, and that certainly does not apply in any meaningful way to our current situation.