Franke: Birth Citizenship
One of Donald Trump’s executive orders establishes an official administrative interpretation of the citizenship language of the Fourteenth Amendment. The question, contentious of course in these divisive times, centers on the right of “birth citizenship,” the automatic granting of United States citizenship to any baby born within the U.S. regardless of the parents’ citizenship status.
Here is the relevant language from the amendment:
“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.”
The Trump executive order declares that “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the ‘jurisdiction thereof’.”
Unfortunately, the executive order does not provide any citations for its interpretative claim, unless it was the unstated exception for babies of accredited diplomats or those born to foreign invading armies. Fortunately the latter exception has never needed to be litigated.
Our monthly Socratic discussion group took on this topic at our March meeting. It was proposed by one of our number who is a practicing attorney with a legal background in this issue. He argued that Trump’s order offers the correct interpretation of the Constitutional language and is the most practical method of administering this interpretation.
We began by attempting to set the moral and legal boundaries for our discussion. We could all agree that the issue has both. We are a nation of laws, laws based on the ascending language of the Declaration of Independence and the more earth-bound language of the Constitution.
It soon became obvious that the salient definition we needed was for the clause “subject to the jurisdiction thereof.” Is this no more than a geographical designation? If you are born on U.S. soil, are you meant to have automatic citizenship? There are legal precedents for this, including an 1894 Supreme Court decision regarding a child born in San Francisco to Chinese nationals who was declared a U.S. citizen.
Then in 1982 the Supreme Court ruled that children who are in the U.S. illegally must be allowed to attend public schools. The relevant Fourteenth Amendment language behind this decision prohibits states from denying “any person within its jurisdiction the equal protection of the laws.” There’s that pesky “jurisdiction” word again.
One would think that these decisions could settle the matter but then this is today’s America. It seems that nothing is ever settled anymore.
We had our usual detours into American history, primarily the immediate setting for the Fourteenth Amendment — the rights of recently manumitted slaves. Then we dropped down the philosophical rabbit holes of Enlightenment social contract theory and the Lockian classical liberalism of the Founding Fathers.
Where we ultimately landed was on this question: Is there an effective difference between “subject to the jurisdiction of” and “subject to the laws of”? The lawyer who defended the provocation was adamant in his belief that there exists a clear and definable distinction between the two, as the Trump executive order claims. This distinction can be reduced to clear language through legislation and court decisions, although he realized this could take ten or more years.
The argument goes something like this: A non-citizen temporarily residing in another nation must obey the general laws of the host nation, such as obeying speed limits and common criminal laws. No one would argue with that. Jurisdiction, however, is a broader concept that runs with citizenship responsibilities based on national loyalty. At least that’s the position of the Trump administration and others who differentiate.
Because this issue has practical and immediate implications, we determined to handle it under strict Socratic rules, or at least as strictly as we amateurs could apply them. Our rulebook is Plato’s Dialogues, our source for how Socrates did things back then.
Plato’s rubric is an extended question-and-answer format in which Socrates identifies the weaknesses in his interlocutor’s logic by constantly questioning the assumed premises and the potentially faulty conclusions. He almost always succeeds in changing his opposite’s opinion.
I served as our attorney colleague’s Socratic foil, probably because I am the most contrarian of the group, yet I was not able to move him from his opening statement in support of the Trump executive order. But then, I am hardly Socrates. Which is a good thing for me, as I don’t care for hemlock cocktails.
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