President Donald Trump wants to punish babies born in the United States for the wrongful entries of their mothers into the country. There’s just one thing standing in his way: the U.S. Constitution.
On October 30, Trump fumed to Axios on HBO that he would end birthright citizenship conferred by section 1 of the 14th Amendment through an executive order presumably targeting the children of undocumented parents.
Put aside the fact that birthright citizenship is not the engine driving illegal immigration—it’s much more complicated that that. Also ignore that the babies decried by Mr. Trump are no more likely to turn to crime or become public charges than are other citizens. Birthright citizenship has been undisturbing to domestic tranquility for 150 years.
Trump is casting aspersion on the brightest star in our constitutional constellation—that individuals shall be judged and treated based on wisdom, character, accomplishments, and kindnesses, simpliciter. They shall be un-handicapped by what their parents are or have done.
That is the inspiring philosophy of the Declaration of Independence. It informs Article III, section 3, clause 2 of the Constitution that prohibits punishing offspring for the treason of parents. And it is celebrated in the 14th Amendment: “All persons born…in the United States and subject to the jurisdiction thereof, are citizens of the United States.” The Supreme Court agreed in Plyler v. Doe (1982) that no child is responsible for his birth, and penalizing the child is an unjust way of deterring the parent. Accordingly, undocumented children brought to the United States by their parents may not be denied a public education.
In an exhaustive opinion in United States v. Wong Kim Ark (1898), the Court recognized a narrow time-honored citizenship exception for children born of accredited foreign diplomats beyond the reach of United States laws. There was no hint that babies of undocumented aliens or tourists might also be denied citizenship. They are subject to the jurisdiction of the United States. If they commit a crime, they will be prosecuted like any other citizen. None have ever raised a foreign immunity defense.
A contrary argument by Hillsdale College lecturer and research fellow Michael Anton is unconvincing. He relies on a statement made by Michigan Senator Jacob Howard during a debate on the Fourteenth Amendment: “[T]he amendment explicitly excludes from citizenship ‘persons born in the United States’ who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Tacitly recognizing the weakness of the statement, Mr. Anton deceitfully adds an “or” to the sentence to make it read “foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
Yet even with the sleight of hand, the argument fails. As Justice Antonin Scalia endlessly lectured, what matters in constitutional interpretation is that the text that was ratified, not words bandied about during debate. And nothing in the 14th Amendment’s text supports Mr. Anton’s exclusion of children of undocumented aliens, all of whom are subject to the jurisdiction of the United States. Moreover, a constitutional amendment requires approval by the House and Senate, and by three fourths of the state legislatures. Mr. Anton offers no evidence that the House or any one of the ratifying state legislatures agreed with Senator Howard’s statement or even knew he had made it.
Mr. Anton next argues that the Fourteenth Amendment was meant to overturn the odious decision in Dred Scott v. Sanford that black persons could not be citizens of the United States. That may have been the political impetus. But the text speaks in much broader terms. Even Anton does not contend that it excludes the children of non-black legal immigrants.
Mr. Anton deplores maternity hotels in Southern California for pregnant Chinese tourists wishing to give birth in the United States. So do I. But the civilized response is to prohibit the adult wrongdoing, not to punish innocent babies.
No executive order of Mr. Trump’s can override the Constitution.
What has made America great has been the steady emancipation of destiny from ancestry. We should keep going in the same direction, not backtracking.
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.