Trump's Attack on Citizenship

The Fourteenth Amendment Means Exactly What it Says

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” That’s how the Fourteenth Amendment to the Constitution of the United States begins. In common parlance we call this “birthright citizenship.”

In practice, this means that no matter who your parents are, you are an American citizen at birth if you were born here. (There are two small exceptions. First, children born here to “Blue List” foreign diplomats are automatic “green card” holders, but not U.S. citizens. Second, people born in the “outlying possessions” of American Samoa or Swains Island are “nationals,” but not U.S. citizens.)

Over the years, kooks have argued that children born here to “illegal aliens” are not entitled to automatic birthright citizenship. (I put the term in scare quotes because it is pejorative.) One of those kooks is John Eastman, the criminally-indicted and soon-to-be-disbarred lawyer who tried to engineer Trump’s election denial coup.

The biggest kook of all, of course, is Trump himself. Here he is in a 3 minute and 40 second video outlining what he would do on “Day One” to, well, re-write the Fourteenth Amendment. Of course, no president had or has or ever will have the power to do that. (And, interestingly, birthright citizenship is not mentioned at all in the much-discussed Project 25, a.k.a. the Heritage Foundation’s Mandate for Leadership: The Conservative Promise.)

For the definitive rebuttal to the kooks, the ultimate smackdown, look no further than to the (very) conservative Judge James C. Ho, now sitting on the U.S. Court of Appeals for the Fifth Circuit. Back in 2006, when he was about to join the Dallas office of the white shoe law firm Gibson, Dunn & Crutcher LLP, he wrote an essay for the Green Bag law journal entitled Defining American: Birthright Citizenship and the Original Understanding of the 14th Amendment. In twelve pages and 50 footnotes, he demolishes every argument the kooks have made. Please read it.

In 2009 Judge Ho teamed up with three other experts to publish Made in America: Myths and Facts About Birthright Citizenship. It is recommended reading. And in 2012 one of those experts, MacArthur Foundation Fellow Margaret D. Stock, published an article in the Cato Journal entitled Is Birthright Citizenship Good for America? Her answer? “The birthright citizenship rule has not just been of benefit in a moral sense, but has been socially, economically, and politically beneficial to Americans as well. The immigration problems that proponents of a change cite can likely be solved by measures short of altering the Citizenship Clause. Changing the Fourteenth Amendment’s Citizenship Clause to set up a new two-tiered American caste system may get a presidential candidate some quick applause in a debate—but thoughtful conservatives and libertarians will want to take a hard look at the future social, economic, and political consequences of implementing such a rejection of America’s traditional birthright principle.” Notably, Ms. Stock has debated, and defeated, John Eastman many times in public fora.

Much is at stake in November. Friends don’t let friends vote for kooks.