We are reaching a dangerous point in American public discourse. Ideas are maligned because of illusory connections to individuals or movements. Valid policy and jurisprudential questions are dismissed because people are too afraid to be called an –ist or too afraid to be called a –phobe or too afraid of being accused of being an adherent of some –ism.
I began writing this article addressing what seemed to be a straightforward legal question: Does the 14th amendment grant citizenship to the children of illegal aliens?
As I researched the op-ed that prompted this inquiry, I found a response op-ed written six hours after the Washington Post published the seemingly uncontroversial article on birthright citizenship.
It’s no surprise that this response is from a left-wing “news” site. It’s entitled White Supremacy Thrives in Darkness, obviously a play on the Post’s slogan. How dare the Washington Post publish a competing view, by a former Trump Administration official, on a debatable point of constitutional law? If that isn’t sheer bigotry and racism, I don’t know what is.
Michael Anton wrote Citizenship shouldn’t be a Birthright. Anton, according to the Post, is “a lecturer and research fellow at Hillsdale College and a former national security official in the Trump administration.”
Anton’s argument takes the least racist route one can go in arguing against birthright citizenship. Birthright citizenship is derived from a bizarre application of the 14th amendment. I say Anton’s view is the least racist because it fully recognizes the true purpose of the amendment. The 14th amendment is a Reconstruction Amendment. It, along with the 13th and 15th amendments, was designed to force the rebellious democratic states to recognize the rights of Black Americans i.e. newly freed slaves. Thus, the 14th amendment pertains only to Black Americans and we shouldn’t trivialize their experiences with slavery and Jim Crow by applying the 14th amendment to everyone under the sun. To everyone else in the world: the 14th amendment is not about you.
Anton is completely right in this regard, though his solution for addressing it relies on executive authority (a trend I don’t like). Anton reduces some aspects of the article to a defense of the 14th amendment’s original intent. I agree, but he fails to explain how it happened in the first place. If it were just a practice that came about, I might agree that the executive has some authority to clarify, but since the practice is the result of a single footnote in a Supreme Court case, I believe only congress (which has full authority in matters related to naturalization) can undo this practice.
A complete understanding of birthright citizenship is not possible without Plyler v. Doe. In 1982, Justice Brennan ruled, in a 5-4 case, that states could not prohibit illegal aliens or their children from receiving a free public education. But it didn’t end there. In law, obiter dictum is the concept of influential, but non-binding, aspects of a judicial opinion. It literally means “by the way.” It can be in the form of tangential points in a majority opinion, concurrences, even dissents, or in the case of Plyler v. Doe, a footnote.
Justice Brennan, while discussing US v. Wong Kim Ark (a case that held that the children of LEGAL immigrants were citizens as a result of the 14th amendment) inserted the following footnote:
“As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouvé.”
“No plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” (Emphasis Added).
So there is no difference between illegal and legal immigration as far as Brennan is concerned. The court usurped Congress’ Article I power over naturalization. He neglects the simple fact that the court previously faced other categorical distinctions. In Elk v. Wilkins, the Supreme Court rejected the notion that Native Americans were citizens under the 14th Amendment. This was instead done by legislation several decades later, again affirming Congress’ role in naturalization law.
Brennan was in effect, as Ann Coulter points out, deciding federal immigration and naturalization policy based solely on the word of “some guy who wrote a book in 1912.” I’d be a bit more generous than that. Clement Bouvé was at least a lawyer, but there is no way his assessment of US law trumps the “history, the objective, the plain meaning, the authors’ intent, and more than a century of law on the Fourteenth Amendment.”
But regardless of the merits of Brennan’s footnote, it’s even more concerning that said footnote isn’t being challenged. I suppose this is to Anton’s point, liberals look at the 14th amendment and see what they want to see. “Oh but the text clearly says ‘all persons born or naturalized.’” They only see that because they have developed a view regarding the constitution that it simultaneously exists as an archaic document, limited by its time, when they don’t like it and that is exists as an ethereal document, unconstrained by its time, when it achieves what they like. No, it says what it says in 1868.
This is not an issue of Americans being opposed to foreigners becoming citizens, it’s a matter of one judge misinterpreting the 14th Amendment and taking the choice away from states and from the federal government. While Anton says that the President can issue an executive order, I believe that congress must settle this issue. Congress does not have to accept the almost 40-year-old musings of Justice Brennan as law.