No, it is not racist to question birthright citizenship
It is not every day that you are accused of trying to change the outcome of the Civil War, unless you are Donald Trump. After the president had reaffirmed his intention to seek the end of birthright citizenship, Harvard Law Professor Laurence Tribe unleashed a furious tweet declaring, “This fuxxxng racist wants to reverse the outcome of the Civil War” by changing the meaning of the 14th Amendment. Of course, birthright citizenship of immigrants was not what the Civil War was fought over. That was slavery.
Tribe is correct, however, that one of the outcomes was the passage of the 14th Amendment in 1868 to guarantee the rights of citizenship to protect the status of freed American slaves. That much is clear. The problem is that little else is. Since the 14th Amendment was ratified, many leaders have opposed claims of birthright citizenship, including former Senate Majority Leader Harry Reid. Moreover, most countries reject such claims of citizenship. One can be entirely on board with the outcome of the Civil War, not be a racist, and still oppose birthright citizenship.
The 14th Amendment starts and ends as a model of clarity, stating that “all persons born or naturalized in the United States” are “citizens of the United States and of the state wherein they reside.” But between those two phrases, Congress inserted the words “and subject to the jurisdiction thereof.” Those six words have perplexed scholars for 150 years. The dominant view of law professors is the line as a whole guarantees that anyone born within the United States becomes a American citizen. But many believe that the caveat means you must be here in a legal status, that if you are not a American citizen, then you are a legal resident.
At the time it was written, the sponsors expressly stated its purpose as protecting freed slaves and not the offspring of foreign citizens. Republican Senator Jacob Howard, who was a coauthor of the 14th Amendment, said that it was “simply declaratory” of the Civil Rights Act to protect freed slaves. He assured senators, “This will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.”
Then there was Republican Senator Lyman Trumbull, who was the author of the 13th Amendment, the Civil Rights Act, and a drafter of the 14th Amendment. Trumbull stressed that the six words only included those “not owing allegiance to anyone else.” Yet, other members objected that the language could cover anyone physically within the United States.
The Supreme Court seems to reflect the same confusion over the caveat. Not long after the 14th Amendment was ratified, the justices seemed to affirm that the language was meant solely to protect the status of freed slaves. In the Slaughterhouse Cases, the Supreme Court explained the phrase “subject to its jurisdiction” was “intended to exclude from its operation” children of “citizens or subjects of foreign States born within the United States.” A few years later, the justices cast doubt over claims that the 14th Amendment grants citizenship to “children born within the jurisdiction without reference to the citizenship of their parents.”
Later, in 1884, the Supreme Court stated unequivocally in John Elk versus Charles Wilkins that parents must not merely be “subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and not subject to any foreign power,” as well as owe the United States “direct and immediate allegiance.” Yet, the Supreme Court also held later that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” But the parents in that case were legal residents. The justices also rejected efforts to draw distinctions between individuals within the United States for other purposes of the 14th Amendment.
So what does all of this mean? It means that anyone who claims that this question is clear is being less than candid. There are strong arguments on both sides of this question. Moreover, it is true that birthright citizenship in the United States makes us one of the most permissive jurisdictions in the world on this issue. While inelegant, Trump has correctly described birthright citizenship “where you have a baby on our land, you walk over the border, have a baby, congratulations, the baby is now a citizen.”
Most of our closest allies in Europe reject such claims. They follow the common practice of “jus sanguinis,” or right of blood, and refuse to recognize citizenship solely because someone was on their territory at birth. Only around 30 countries, including the United States, follow “jus soli,” or right of soil. With no definitive decision by the Supreme Court, the existing precedent favors birthright citizenship, but the outcome is in no way certain. Nevertheless, some justices are likely to get sticker shock over the implications of a narrowing of the interpretation of the 14th Amendment. Chief Justice John Roberts is a judicial incrementalist who resists massive changes ordered from the Supreme Court, and ending birthright citizenship would put the boldest jurist in a fetal position.
If the Supreme Court maintains the broader interpretation of the 14th Amendment, Trump could not carry out his plan with an executive order or even a legislative fix. He would need a constitutional amendment to join the other countries following the rule of “jus sanguinis.” All of this is far more complicated that simply declaring that Trump is some racist pursuing an antebellum agenda. This debate starts with a maddeningly vague caveat of six words followed by 150 years of conflicting legislative and judicial statements on its meaning. This explains why constitutional interpretation can be much like what General Robert Lee once said of combat, “It is well that war is so terrible, or we should grow too fond of it.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.