No Need for a Constitutional Amendment

I see that Trump is again making a big waves among open-borders fanatics and self-styled “Constitutional Scholars” on the Left warning that so called birthright citizenship afforded American-born children of non-citizen residents subject to a foreign jurisdiction is “considered settled law,” and therefore that any and all attempts by the administration to discontinue the practice short of initiating the amendment process will be soundly defeated in the issue by judicial fiat in the activist federal courts.

Thomas Huxley once wrote that, “The great tragedy of science is the slaying of a beautiful hypothesis by the introduction of an ugly fact.” In a fleeting fit of magnanimity guided by Huxley’s counsel, I’m willing to grant that the body of “settled law” supposedly authorizing the granting of automatic birthright citizenship to children of non-citizens aforementioned amounts to a “beautiful hypothesis” IF the folks at CATO and the Eric Foners of the world et al will reciprocate my magnanimity and grant that their beautiful hypothesis in this particular instance has long-since been slayed by the introduction of numerous “ugly facts” in direct refutation thereof.

Those ugly facts of which I speak may be found in the Congressional Globe and its transcripts of the debate in the 39th Congress declaring the original intent and scope of the citizenship provisions of Section I of the Fourteenth Amendment, which section was introduced to the full Senate out of committee by Senator Howard of Michigan. You may read a fuller treatment of the subject and subject matter in my 2010 essay titled, An Essay Concerning the Citizenship Provisions of the Fourteenth Amendment, here, if you so desire. In lieu of your reading the essay in full, I offer the following excerpts [**]:

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[…] Senator Howard of Michigan initially explained the language of these provisions in the following, unambiguous terms:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.

For the sake of argument, and only for the sake of argument, one may grant the remote possibility that this first portion of Senator Howard’s more expansive opening remarks introducing this language could be read, in and of itself, to define the citizenship provisions as [Prof.] Foner suggests they were intended to be defined. One may not read this opening portion of the statement, however, outside the context of his entire introductory statement, nor of the entirety of the debate which ensued, without incurring the censure of attempting to establish a pretext.

Senator Howard continues his introductory remarks:

This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of embassadors (sic) or foreign ministers accredited to the government of the United States, but will include every other class of persons… (italics/bold added)

But of course!

While Senator Howard does not specifically mention Tribal Indians “not taxed” in these statements, the ensuing debate quickly reveals that his intention and that of his colleagues was to exclude them as a distinctive class of persons not subject to U.S. jurisdiction. But that’s really beside the point as it relates to our discussion, and one suspects that Professor Foner knows that it’s beside the point in spite of his making it a central point per the second stipulation.

Here we have Senator Howard establishing the proper context in which to read the subject to U.S. jurisdiction provision of the clause in question, which is that in addition to its excluding at least three distinct and broad classes of persons according to Senator Howard, it is inextricably connected to the first provision, forming with the first a two-part procedure. Unless the phrase “with minor exceptions” means all American-born foreigners, all American-born aliens, and all American-born persons belonging to families of ambassadors or foreign ministers accredited to the United States (which seems rather “major,” not “minor”), then we seem to have confined the second provision’s language to too narrow a scope according to Senator Howard’s explanation above.

According to Prof. Foner, though, this provision was only meant to apply to tribal Indians and American-born children of foreign diplomats. As we can see in Senator Howard’s statements introducing this language, however, and as we shall see in the statements of other Senate members of the 39th Congress, it was intended to exclude many more than those comprising these two classes of persons Foner mentions.

Indeed, the contents of this debate reveals that had the body of the Senate understood the scope of the provision in question in the very limited, idiotic sense that Prof. Foner interprets and demands it should be applied, they would have rejected it out of hand and opted for a broader version excluding those classes of persons aforementioned. Are we to take Foner’s explanation over the explanation of the very person who originally proposed that the citizenship provisions be added to section one of the fourteenth amendment and the body that approved it? Certainly not. We are authorized to conclude the following, however, based on the entirety of Senator Howard’s statements above.

First, Senator Howard’s statement that “this will not include persons born in the United States who are foreigners, aliens, etc.,” obviously meant to him that it excludes these persons, for the opposite of include is exclude and the term “not include” is another way of saying exclude. To say otherwise is to violate all three elemental laws of rational thinking, I.e., the law of non-contradiction, the law of identity, and the law of excluded middle. At the risk of belaboring the point, saying that a thing will not include x,y,z, is to say that it excludes x,y,z. Most any third grader understands this simple concept, and Senator Howard certainly understood it.

Second, Senator Howard’s choice of words otherwise is instructive in its own right. Note that he makes a distinction between those he calls “foreigners” and those he deems to be “aliens” in the second sentence. Note also that his word “aliens” is disconnected from persons he describes as “belonging to families of ambassadors or foreign ministers” by the insertion of a comma between the two classes. So that his stated intention by this language was to exclude from the rights of citizenship, until such disabilities are lawfully removed, three distinct classes of persons. According to Senator Howard the classes of persons to be excluded by the provision in question are as follows:

(1) American-born foreigners,

(2) American-born aliens and,

(3) American-born persons belonging to Ambassadors, etc.

So that his words in this sentence might just as well read: “This will not include persons born in the United States who are foreigners; this will not include persons born in the United States who are aliens; and this will not include persons born in the United States who belong to families of ambassadors,” etc. Or, if it be our preference, “this will exclude persons born in the United States who are foreigners; this will exclude persons born in the United States who are aliens; and this will exclude persons born in the U.S. who belong to families of ambassadors, etc.” Senator Howard simply shortened these phrases as a matter of brevity, but either way we state it conveys precisely the same me exclusionary message.

(Tribal Indians born in the United States would in general fall under the second class of persons as we’ve listed them, while a few of them would fall under both the second and third classes of persons to be excluded by these provisions.)

Of particular note is that in each of the above instances a distinct class of persons born in the United States is excluded by the provision according to Senator Howard. In other words, and according to Senator Howard, simply having been born in the United States, or within its limits, is insufficient qualification for admission to U.S. citizenship; in addition to U.S. birth one must also be subject to the jurisdiction thereof, just as the provision plainly states.

We may safely assume that Senator Howard and others anticipated that many persons besides tribal Indians and those belonging to foreign diplomats would in future be born in the United States, who were not, by virtue of their birthplace alone, subject to U.S. jurisdiction. This being the case, the 39th Congress deemed it necessary to exempt such persons, whomever they were and from whence ever they came, from becoming automatic shareholders in the rights and duties of U.S. citizenship.

[End of excerpt]

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I’ll leave y’all with these parting thoughts: Any hope of success in this venture by Stephen Miller and the Trump administration hinges largely upon elimination of the so called “Enrollment at Birth” in Social Security option offered to non-citizen birth mothers of children born within U.S. jurisdiction going forward. The reason for which I explain in more detail within the body of the full essay. I suspect that Stephen Miller is keenly aware of this fact, but cannot know for sure since I’ve never spoken directly to him.

Further discussion in the comments is invited and encouraged as always.

God save the Southland!

[**] See also Raoul Berger’s book, Government by Judiciary, The Transformation of the Fourteenth Amendment, for a more exhaustive treatment in these connections.