Mediaite and Politico are running headlines for this segment claiming that Trump said the Fourteenth Amendment is unconstitutional, which is cute but unfair. What he’s saying, in his own … folksy way, is that he thinks the Supremes will side with him in finding that birthright citizenship under the Constitution doesn’t apply to children of illegals. What’s newsy is him implying that that ruling should apply not just prospectively but retroactively (“I don’t think they have American citizenship”), meaning that many thousands of people — some now adults — who have lived all their lives in America as citizens would suddenly find themselves stateless. Even Mark Krikorian, an immigration expert and one of the right’s most forceful advocates for stronger borders, thinks that ending birthright citizenship should be paired with an amnesty for kids already born here to illegals so that they retain their status as U.S. citizens. (Needless to say, that would make the shift in policy far more politically salable too.)
I don’t know if it’s true, as Trump claims, that “many” lawyers agree that the Fourteenth Amendment doesn’t guarantee birthright citizenship for illegals, but some do. Lino Graglia made the case for that position several years ago. Andy McCarthy and Edward Erler are supporting it at NRO today. Mark Levin argued last night that however you feel about what the Fourteenth Amendment says, Congress can change the meaning of birthright citizenship by statute, with no constitutional amendment needed. The key is the phrase “and subject to the jurisdiction thereof” in Section 1. If you read that, as McCarthy does, as a reference to national allegiance, then it follows that citizens of foreign states aren’t included. Problem is, how do you discern the allegiance of a newborn? It may be true that an infant’s parents are loyal to another country, but if that infant is born and raised in the U.S. and spends his life believing himself to be a U.S. citizen, how is he not subject to the jurisdiction of the United States? What critics are really doing with the “jurisdiction” clause is trying to make nationality a hereditary trait. Two citizen parents makes you a citizen; one citizen parent also makes you a citizen; two non-citizen parents who are here legally might make you a citizen. But two illegal parents means you’ve got a fatal combination of recessive citizenship genes, ergo, you’re not a citizen. If allegiance is what we’re worried about, couldn’t it be cured by having native-born children of illegals formally take an oath of loyalty to the U.S. as naturalized citizens do?
That said, to repeat the point I made yesterday, I think birthright citizenship for the children of people who have no legal right to be here is a bizarre policy, especially in an age when crossing oceans takes a matter of hours. In fact, since Trump floated this idea on Sunday, I don’t think I’ve seen one compelling poilcy argument for it among the endless commentary crapping on him for proposing it. The political arguments for supporting it are easy: This is the way it’s always been (although the same was true of traditional marriage, of course), and it would be unspeakably cruel to expel children who until now had a right to American citizenship protected by the Constitution. What’s the policy argument, though, for incentivizing illegals to sneak across the border and stake their claim to permanent residency by giving birth before ICE notices them? The best I can come up with is that there are bound to be some fine Americans we’d lose if we insisted on those parents taking their kids back home to their native country, but of course that’s also an argument for open borders generally. There’s bound to be some talent and true-blue American patriotism in any population of illegal immigrants. If that’s an argument for maintaining birthright citizenship, why isn’t it also an argument for waving through any foreign citizen who wants to come here (excluding criminals, natch)?