Doing it the right way

President Donald Trump took the unusual step of attending part of the oral argument regarding his executive order aimed at ending birthright citizenship in the United States. Since the passage of the 14th Amendment, virtually any child born on American soil has become a citizen. This has been true regardless of the citizenship of the parents. It is believed that the ability to achieve citizenship for one’s children in this way has served as an enticement to illegal border crossings, especially across the Mexican border, and “birth tourism” on the part of travelers. A sizeable number of Chinese parents have come to the United States to have a child who could return later to enjoy the status of citizen.

There are legitimate public policy reasons for U.S. citizens to see birthright citizenship as a potential problem worthy of concern. People believe undocumented newcomers crossing into the country will be less accountable for crime and more likely to use up significant resources in healthcare and education without being fully known and taxed. With China as a rival, Americans imagine a plan to develop disloyal citizens who will use their status against the United States. While the truth is typically more complex than rhetoric, the debate is worth having.

But the bigger point has to do with legal interpretation. As it became clear in the oral arguments that justices were likely to rule against the president, many supporters expressed dismay. Despite the disagreement of some fellow conservatives, I do not think the words, “All persons born or naturalized in the United States and subject to the jurisdiction thereof,” means anything different that it has been taken to mean. The immediate intent of the amendment was to establish the citizenship of all the former slaves born in the United States and their children. What does “subject to the jurisdiction thereof” mean? I believe the most obvious meaning (endorsed by John Yoo) is that those not subject to the jurisdiction were foreign diplomats and their families, invading armies, and the Native Americans living on their tribal lands. Nevertheless, there is a fair interpretive argument that can be made about the language and original intent.

The problem comes in when we try to have the public policy outcome drive the legal interpretation of the text. Many opponents of birthright citizenship are arguing that birthright citizenship represents an existential crisis and therefore the court should read the Constitution in such a way as to allow the president to put an end to it.

It is important to say emphatically that we do not want to force the text of the Constitution to say things it does not say. I would argue that a similar approach led to the Roe v. Wade ruling that invented a national license for abortion from a constitutional text that clearly authorized no such thing. The court was ruling at a time when the sexual revolution was underway and fears of a population explosion were an ongoing fascination of both elites and popular culture. Abortion seemed like part of the solution. Today, many want the text of the Constitution to permit an end to birthright citizenship in light of a massive influx of immigrants caused by negligent immigration policy for decades (but unusually bad during the Biden administration). Nevertheless, we do not want judges to act as a kind of super legislature capable of altering the Constitution at will. Conservatives were once quite clear about that.

If we empower the court to impose current public policy preferences onto the text, then we will be ruled by a group of nine philosopher kings instead of by a constitution. The value of a constitution is to establish rules ahead of time instead of trying to redefine them in the middle of events that generate passion rather than cool consideration. Our founders were worried about the power of political passion wedded to factions. Part of their answer was to make a constitution that frustrated such sudden moves. Whether we like birthright citizenship or not, the question is not one to be decided by an executive order that upsets what appears to be the direct meaning of the text of the 14th Amendment and its longtime operation.

For a long time, the left has used the power of the courts to amend our Constitution without engaging in the arduous process that requires supermajorities to achieve. In such fashion, they created rights to abortion and gay marriage. The answer to frustrations in our current politics is not to double down on what was already an abusive and Constitution-warping jurisprudence repeatedly employed by secular progressives. The answer is to deal with the Constitution in the correct way, which is to amend it by the process spelled out in the document, itself.

Click here to read Eric Teetsel’s counterpoint column on birthright citizenship.