Edward Erler
Subject: Ending Birthright Citizenship for Illegal Aliens
Bio: Professor of Political Science at California State at San Bernardino and author of The United States in Crisis: Citizenship, Immigration, and the Nation State
Transcript:
Larry Bernstein:
Welcome to What Happens Next. My name is Larry Bernstein. What Happens Next is a podcast which covers economics, politics, and culture.
Today’s topic is Ending Birthright Citizenship for Illegal Aliens.
Our speaker is Edward Erler who is Professor of Political Science at California State at San Bernardino and author of The United States in Crisis: Citizenship, Immigration, and the Nation State. Edward also has a new book that just came out entitled Prophetic Statesmanship: Harry Jaffa, Abraham Lincoln, and the Gettysburg Address.
President Trump recently gave an executive order to the State Department instructing them to deny citizenship to children born in the US with parents who are illegal aliens. A Federal District Court Judge placed a nationwide injunction against Trump’s order and the issue is now before the Supreme Court.
I want to learn from Edward about birthright citizenship. Specifically, I want to know if the 14th Amendment guarantees birthright citizenship for all children born inside the US, and if not does Congress have the ability to decide the issue.
Edward, can you please begin with six minutes of opening remarks.
Edward Erler:
The question that we want to discuss today is birthright citizenship. I think it's very clear that the founders of America rejected the idea of birthright citizenship. The greatest evidence for this is the Declaration of Independence. Before 1776 Americans were subjects of the British Crown and the English common law.
Under the English common law, Americans were subjects of the king and owed perpetual allegiance to the king as a debt of gratitude. This perpetual allegiance could not be thrown off, transferred, or dissolved in any manner without the permission of the King.
The American Revolution, particularly the principles of the Declaration of Independence, transformed subjects into citizens. Consent of the governed became the legitimate foundation of republican government.
We hear often today that there are only two grounds of citizenship: place of birth or dissent. But the framers chose a third basis for citizenship and that was the consent of the governed. You can choose freely to be governed and that is the only legitimate basis of citizenship. According to the framers of the United States, it is the only basis for citizenship that doesn't replicate the coercive elements of feudalism. It is based squarely on the social compact theory of government that is inherent in the Declaration of Independence.
Larry Bernstein:
The 14th Amendment states in Section One in its first sentence. It says, “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.” What does that mean?
Edward Erler:
The 14th Amendment there are two requirements to be a citizen of the United States. You have to be born or naturalized in the United States and you also have to be subject to the jurisdiction of the United States. That means that it's not enough to be born within the geographical limits of the United States. You also have to be subject to the jurisdiction of the United States.
Larry Bernstein:
Talk about where this amendment came from. What were the senators thinking about when they proposed this amendment? What was the context? What was the purpose of this 14th amendment?
Edward Erler:
It begins with the 13th Amendment that abolished slavery. Many people believed at the time that by abolishing slavery you freed the slaves, guaranteed citizenship and all of the rights and privileges and immunities that are inherent in federal citizenship.
Others believed that it was not enough to rely on the amendment, but it was safer to pass legislation to make it certain. The Civil Rights Act of 1866, which was far reaching legislation, guaranteed to the newly freed slaves all of the rights, liberties, privileges and immunities that were guaranteed to white citizens. They put black newly enfranchised citizens on the same status as white citizens.
That piece of legislation was vetoed by President Andrew Johnson because he believed it was an encroachment upon state's rights and that legislation was passed over his veto by a three quarters majority in both houses of Congress.
At the time, many congressmen believed that perhaps legislation itself is not sufficient. This was the first movement that we needed an amendment to the constitution to prevent future majorities from repealing the Civil Rights Act of 1866.
When the first proposal came out to add a citizenship clause to the 14th Amendment, it merely stated that citizens were persons born in the United States or naturalized by the laws thereof. This was very sparse language and had this been the final version it would've allowed all persons born within the geographical limits of the United States to be citizens of the United States. But this language was referred to the Joint Committee on Reconstruction that reported back the language that became the citizenship clause. It's evident that the Joint Committee placed importance on the jurisdiction clause, which meant at a minimum that not all persons born the U.S. were automatically citizens.
Larry Bernstein:
What was the legislative intent when the senators spoke to each other about that clause subject to the jurisdiction thereof mean by it?
Edward Erler:
The final language says, “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state.” It's important to notice also that United States citizenship comes first and state citizenship is derivative from United States citizenship. Prior to that, state citizenship was first United States citizenship was secondary.
This was brought to the floor of the Senate by Michigan Senator Jacob Howard, who was the manager of the 14th Amendment for the Joint Committee on Reconstruction. He said that the change was, I'm quoting now, simply declaratory of what I regard as the law of the land already. And when he said declaratory of the law of the land already, he was referring to the Civil Rights Act of 1866.
The Civil Rights Act of 1866 meant subject to the jurisdiction that meant complete jurisdiction, not owing allegiance to anyone else. So, the question was one of allegiance, whom do you owe allegiance to?
Section Five of the 14th Amendment says Congress has the power to enforce the provisions of this amendment. Congress has power to define by appropriate legislation who is subject to the jurisdiction of the United States. At any time, Congress can pass legislation determining or making within the jurisdiction any persons whom they determine to be eligible, and they have done so over the years.
In 1868, the Senate Judiciary Committee determined that native persons were not made citizens by the 14th Amendment. What Congress did thereafter was to invite various tribes, if they consented, to become citizens, and they were given an offer. In 1923, this offer of citizenship was made universal. Any native person in the United States could become a citizen of the United States if they consented to be so.
Larry Bernstein:
In the 1890s, there was a treaty between the U.S. and China and in that treaty it defined citizenship for Chinese workers that came to the United States. In 1898, the US Supreme Court ruled that children of Chinese workers were US Citizens. Tell us about the Wong Kim Ark case and why it is important for American birth citizenship.
Edward Erler:
Wong Kim Ark's parents were subjects of the Emperor of China. The Chinese Emperor relied upon birthright citizenship, and he did not allow his citizens to come to the United States to become citizens of the United States. And there was a treaty with the United States that forbade Chinese citizens ever to become citizens of the United States.
Larry Bernstein:
And what about their children?
Edward Erler:
According to United States vs. Wong Kim Ark, if their children were born within the geographical limits of the United States, they became citizens. The holding in Wong Kim Ark was a mistake because the court held that all persons born within the geographical limits of the United States were deemed to be citizens of the United States. That was a mistake. That case needs to be overruled.
There were two dissents, one by the Chief Justice, who said that this decision doesn't square with the Declaration of Independence or the principles of the revolution and is deemed to be unconstitutional unless it is explicitly to be held to be overruled by positive law and that has not been.
Larry Bernstein:
Chief Justice Fuller's opinion was signed by Supreme Court Justice John Harlan as well.
This case was decided in the 1890s and over that 130-year period, the United States has decided to treat Wong Kim Ark and Justice Gray's opinion as the law of the land. Anyone born here has been given automatic US citizenship except for the son of an ambassador or something like that.
As the number of immigrants expanded and there's been people flying in and having kids here and then flying back to the country to get automatic citizenship, technology has changed. Tell us about the evolving constitutional view on this provision as the facts on the ground have changed and put pressure on a reinterpretation of this clause in this first sentence.
Edward Erler:
I don't think that there is a case that has been decided by the Supreme Court which squarely holds that children of illegal immigrants are automatically citizens of the United States.
The idea of dual citizenship when a naturalized citizen takes the oath has to swear exclusive allegiance to the United States that's required by law. For example, if you're formerly a citizen of Iran and you come to the United States and you become a naturalized citizen, you have to abjure and swear your former regime and take exclusive allegiance to the United States. Now that puts an impossible burden upon this naturalized citizen who at the same time still holds his exclusive allegiance to the Mullahs of Iran.
Larry Bernstein:
But we often hear people not only are they dual citizens but they vote in multiple places.
Edward Erler:
The law strictly read doesn't allow that. The State Department over the years allowed it to happen, but the law itself doesn't allow it. The President being head of the executive branch responsible for the State Department could issue at any time an executive order ordering the State Department to obey the law.
Larry Bernstein:
I didn’t realize that dual citizenships were against the law and that the State Department was not enforcing it. And that all it would take is an order from the president to the State Department to ban dual citizenship.
Next question. Can the President order the State Department to deny citizenship to a newborn child of an illegal immigrant born in the United States?
Edward Erler:
That's going to be a much more difficult proposition, but he can stop birth terrorism or people who come to the United States on temporary visas who say they're coming here for business or pleasure and overstay their visas and have children. He can stop the citizenship of those people by executive orders.
Larry Bernstein:
What was the executive order that got that nationwide injunction from the judge? What did the executive order say?
Edward Erler:
He believed that he could issue an executive order stopping birthright citizenship. Now I'm reluctant to say that executive order is sufficient to stop birthright citizenship.
Larry Bernstein:
So, you think congress needs to act as well?
Edward Erler:
Congress can act under Section Five of the 14th Amendment to stop birthright citizenship. That I have no doubt of, but whether executive order is sufficient to do that is difficult for me.
I think that the Supreme Court would have a difficult time saying that that exercise of constitutional power by the Congress was unconstitutional.
Larry Bernstein:
The more liberal members of the court, do you think that they could be persuaded or do they say something like if you're born here, you're American. That's what it says. It's over.
Edward Erler:
I think the larger problem is those people can't be persuaded. But we have to become a nation state with borders and animated by the same ideas. For example, Justice Thomas is always talking about privileges and immunities. Privileges and immunities are those ideas that we share as a people and that they are shared by no other nation state. And we have to realize that nation states are unique in the world.
Think of Lincoln's speech to the newly arrived immigrants in 1859 where he said, you immigrants who have just newly arrived can't trace your ancestors to them by blood, but you share that great idea that all men are created equal. You can trace yourselves to those men that founded America and you are a part of their blood because you share the ideas that made America great.
Larry Bernstein:
Someone enters the country illegally and says, I hereby consent to be an American citizen. I share your values. I'm in. The United States can say that's all well and good, but we're not interested in having you as a citizen. It's more than just a right to give consent. There has to be acceptance.
Edward Erler:
Justice Gray, the author of the majority opinion in Wong Kim Ark also wrote an opinion in which he understood the social contract basis of American citizenship in which he made an argument just as you outlined.
The case name is Elk versus Wilkins in 1883.
A member of an Indian tribe had come on election day and said I want to vote. I renounce my allegiance to my tribe, I swear allegiance to the United States, and I want to vote. The supervisor of elections said, “I'm sorry, but we don't accept your offer and if you want to apply for citizenship, then you should apply for citizenship. And if your offer of citizenship is accepted, then of course at the next election you can vote, but you can't declare your allegiance to America. You can offer but it must be accepted.” And that opinion was written by Justice Gray. Now in the Wong Kim Ark case, he writes an opinion that is the exact opposite of what he had written in 1883.
Larry Bernstein:
I am a friend of Judge Richard Posner who is a retired Federal Appellate judge, and he comes from the pragmatic side. He says, we live in the 21st century. We got to do what makes sense. He said that this 14th amendment was designed at the end of the Civil War to protect African-American citizens' rights. It was not intended to be used for tourist babies, and we live in a different society than then. And if we consider it in that context, the Congress and the President can act to redefine what that means would be in the best interest of the United States. The Constitution is not a suicide pact. How do you feel about the pragmatist approach to analyzing this first sentence of the 14th Amendment in particular, the subject of the jurisdiction clause?
Edward Erler:
That's what I've been advocating. I think that that's exactly correct. The way we look at it now as if we are not a nation state. We're a state without borders and that is a suicide pact. We need to become a nation state to have borders. That we have privileges and immunities that we all share and a definition of citizen which we can hold onto very tightly and that everyone can share without any ambiguity whatsoever. I agree with that a hundred percent. I think that's spot on.
Abraham Lincoln talking about the Dred Scott Case said about precedent. He said, we can oppose the Dred Scott Case politically. We're not going to form a mob and go and demand that Dred Scott be released, but we can oppose it politically because it's not based upon any precedence. It's based upon mistakes and therefore we will oppose it politically and hope to overturn it as possible. I think Wong Kim Ark is based upon terrible precedents.
Larry Bernstein:
In conclusion, if Congress redefines birthright citizenship and passes legislation that children of illegal aliens born in the United States are not citizens, would that be consistent with the 14th Amendment and supported by the Supreme Court? And do you have a different answer if it is done solely by executive order by the President?
Edward Erler:
If Congress passes a law under Section Five of the 14th Amendment, defining who is subject to the jurisdiction of the United States and includes children born to illegal immigrants saying that they are not subject to the jurisdiction, I believe that the Supreme Court will uphold that law without question. But I am uncertain and doubtful that the Supreme Court will uphold an executive order that tries to abolish birthright citizenship.
Larry Bernstein:
Thanks to Edward for joining us.
I want to remind our listeners that Edward has a new book that was released this week entitled Prophetic Statesmanship: Harry Jaffa, Abraham Lincoln, and the Gettysburg Address.
If you missed the last podcast, the topic was Reconsidering Ronald Reagan.
Our speaker was Max Boot who is the author of a new critical biography entitled Ronald Reagan: His Life and Legend. We heard how Reagan’s early life experiences in radio, film, and TV honed his communication skills to succeed in politics. Max also explained how Reagan’s hands-off management style effected policy implementation.
I would like to make a plug for next week’s show. Our speaker will be the What Happens Next Culture Critic Darren Schwartz and we will be having a Tom Cruise film retrospective.
You can find our previous episodes and transcripts on our website
whathappensnextin6minutes.com. Please follow us on Apple Podcasts or Spotify. Thank you for joining us today, goodbye.
Check out our previous episode, Reconsidering Ronald Reagan, here.
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