Birthright Citizenship

A primer

Wong Kim Ark, from a 1904 US immigration document, via Wikimedia Commons.

Fourteenth Amendment to the United States Constitution, section 1:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Trump's executive order from last week "Protecting the Meaning and Value of American Citizenship" suggests that there are categories of persons born in the United States who are not "subject to the jurisdiction" of the federal government and hence not citizens, specifically:

Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

This is such bullshit I'm still gobsmacked a week later. In the first place it doesn't even attempt to make a case against the baby, only against its parents. Section 1 doesn't say "all persons born...in the United States whose parents are subject to the jurisdiction thereof". And then do the authors have a clue what the word "jurisdiction" means?

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1. Power of a court to adjudicate cases and issue orders; or

2. Territory within which a court or government agency may properly exercise its power. See, e.g. Ruhrgas AG v. Marathon Oil Co. et al. , 526 U.S. 574 (1999) .

Do federal courts not have power to adjudicate cases and issue orders involving persons who are unlawfully present in the United States or lawfully present but not permanent residents, or their infant children? Of course they do, and so do state courts, which have more occasion to deal with them. Plenty of persons who are not permanent residents or citizens are criminal defendants going on trial (though nowhere near as many as the native-born, who supply the nation with the vast majority of its criminals), and civil defendants or plaintiffs as well. They can get arrested for murder or DUI, divorced, adopted, contest wills, or sue for personal injury. They can be subject to deportation orders, I believe Donald has heard of those. They can also be granted asylum, or temporary protected status, or participate in the DACA program. To say they aren't "subject to the jurisdiction of the United States" is beyond ridiculous, and to say their babies aren't is idiotic.

They also, whatever Stephen Miller may think, enjoy the rights of due process and equal protection guaranteed under the 14th Amendment, as held in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) and Mathews v. Diaz, 426 U.S. 67, 77 (1976) ("There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law."); Plyler v. Doe, 457 U.S. 202, 215 (1982). My bold.

Everybody knows what it is to be "in the United States" but not "under the jurisdiction" thereof. It's the status of diplomatic immunity enjoyed by the officials of foreign embassies and consular offices, who never have to pay parking tickets, which makes the local authorities really mad, but also can get away with other crimes ranging from shoplifting to murder. They can also be expelled from the US without any explanation, but it's the president who does that, and the courts don't have any jurisdiction over it, either; diplomats have no 14th Amendment due process rights. The whole arrangement goes back a long way, to the days of feudal courtesy, when war wasn't between nations but sovereigns, and the diplomats were traveling nobility. The French Revolutionary government, with its lack of respect for the nobility, violated the principle often enough, but they didn't last.

Indigenous Americans were originally denied birthright citizenship on the grounds that they were citizens of their own tribal nations, if they were born in acknowledged Indian territory; otherwise, at least from 1831, they were entitled to apply for naturalization and become citizens, especially if they served in the military, married whites, and/or lived on private as opposed to tribal land. Around the time of the 14th Amendment their right to be citizens was specifically tied to their willingness to pay taxes, in the Dred Scott decision and in the 1866 Civil Rights Act. The whole thing was impossibly cumbersome, though, and the federal government wanted them under its jurisdiction, naturally enough.

Also, Native Americans troops played a loyal and distinguished role in the 1898 and 1917-18 wars, and it was partly by way of rewarding them that Congress passed, and President Calvin Coolidge signed, the Indian Citizenship Act in 1924, extending birthright citizenship to all of them. This was not an adequate recompense for the centuries of persecution and despoiling of Indigenous peoples, and it didn't free them from discrimination and mistreatment of all kinds, but it was a start.

Anyhow, it is evident that no argument depending on the idea that unauthorized people in the United States are not "subject to its jurisdiction" can be sustained in good faith, even if it's the subject of an "entire literature", as tweeter Ilan Wurman has complained:

The question of whether the 14th Amendment's promise of birthright citizenship applies to the children of unauthorized immigrants was thoroughly answered in the 1898 case of United States vs. Wong Kim Ark; Wong, an American-born son of Chinese immigrants who were ineligible for citizenship under the racist Chinese Exclusion Act of 1882, had been denied re-entry into the country at the port of San Francisco on his return from a visit to China, claimed citizenship under his 14th Amendment right, and to make a long story short the case eventually went to the Supreme Court, which found 7-2 in his favor that it applies to all children of foreign visitors, “excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country's territory” (nor did the dissent make any mention of whether he or his parents were "subject to the jurisdiction of the US" but instead relied entirely on the Chinese Exclusion Act, which was itself repealed by Congress in 1943); a decision that has not been reversed in the past 129 years. If there was an "entire literature" that justifies throwing it out, it would have been tried in court by now.

Judge Coughenour (of the US District Court for the Western District of Washington, putting a restraining order on the Trump EO) got it right. Among other things, the institution of birthright citizenship represents the character of the nation as founded on an idea, not an ancestry, embodied in the jus soli rather than jus sanguinis. That’s why the white nationalists hate it so much.