President Trump has thrown the political world into a tizzy. In itself, that’s nothing new; he seems to delight in doing so rather regularly. The latest instance is his suggestion that he can end birthright citizenship by issuing an executive order.
I’ll come back to that assertion shortly, but first, let’s look at the issue itself.
The idea that anyone having a child born in the United States automatically makes that child an American citizen has been judged constitutional by our federal courts. The controversy now centers on illegals giving birth. Are those children American citizens if their parents entered the country in opposition to the country’s laws?
All of this stems from the 14th Amendment to the Constitution. How about some historical context here?
The 13th, 14th, and 15th amendments were all added to the Constitution at the conclusion of the Civil War, and all were concerned with slavery and the condition of former slaves. The 13th abolished slavery; the 15th gave former slaves the right to vote. The 13th never caused controversy after the fact; the 15th suffered from attempts to limit that right to vote, but those attempts were eventually banned.
It’s the 14th’s statement about citizenship that is the focus of our current debate. The actual language of the amendment is this:
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.
The first thing to consider is that it was written in the context of ensuring that former slaves were not excluded from citizenship. It was the antidote to the infamous decision in the Dred Scott case in 1857, a decision that upended previous American experience by saying that no black person is or ever was a citizen of the United States. That was at odds with the many free blacks who always considered themselves citizens and had even voted in elections.
That was the main reason for the 14th Amendment: to correct that false belief promulgated by the Dred Scott decision. That is the historical context.
Another part of the historical context is to consider the words uttered on the Senate floor by the author of the amendment, Sen. Jacob Howard, who, in 1866, clarified what was intended by the citizenship clause. Howard stated,
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
According to Howard, citizenship does not apply to foreigners/aliens and those who are representatives of other countries residing in America as ambassadors, etc. In my reading of the statement, I see a distinction between that particular class of foreign representatives and the general connotation of foreigners and aliens. Wouldn’t an illegal alien fit into that latter category?
I realize there can be differing interpretations. That’s why I wouldn’t mind having this debate be open and free, and even submitted to the courts for further clarification.
Now, on to the president’s assertion that he can do his own personal clarification on the issue.
He cannot.
No executive order from any president can undo a constitutional amendment and/or the courts’ decisions based on that amendment. If Trump were to try to undo this precedent merely by the wave of the magic wand of Executive Order, he would not accomplish his purpose—it would immediately be challenged and go directly to the courts.
His goal in making this pronouncement appears to be purely political, an attempt to rally the base as the midterm elections draw near. While that may be understandable politically, it is nonsense constitutionally.
Here’s where I must challenge my conservative colleagues: if you decried how Obama misused executive orders (and I was one of the decriers), you must be consistent and apply that reasoning to Trump’s proposed use of this particular executive order.
If you excuse what Trump proposes as legitimate, you have tossed away your integrity and have decided that constitutional principle no longer matters as long as a president you support resides at 1600 Pennsylvania Avenue.
On the substance of this birthright issue, I agree that the original intent of the 14th Amendment has been skewed. However, the old cliché remains true: two wrongs do not create a right.
I’m actually glad that the nation might be led into a debate on whether children born to illegals have the privilege of citizenship, but that debate needs to go forward in the constitutionally prescribed manner, not by a phony application of a presidential executive order.