RANDY BARNETT: Trump Is Right on Birthright Citizenship: The 14th Amendment’s authors would exclude illegal and visiting aliens from U.S. ‘jurisdiction.’
The clause grants citizenship to persons who meet two conditions: birth in the U.S. and being “subject to the jurisdiction” of the U.S. The dispute is over the meaning of the latter term. Everyone agrees that it excludes at least three classes: children of diplomats, of soldiers from an invading army, and of American Indians maintaining tribal relations. In each of these categories, the status of the child depended on the status of the parent.
The constitutional debate is about the original concept embodied in the text that explains these exclusions and whether that concept embraces or excludes children born on U.S. soil to parents who are unlawfully or temporarily in the U.S. The court has never squarely addressed this question.
Before Mr. Trump’s executive order, what originalist scholarship existed on the original meaning of “subject to the jurisdiction” was sporadic and lightly tested if at all. The past year has produced an explosion of originalist scholarship on both sides. The justices are now in a good position to decide which side has presented the stronger originalist case. . . .
Sen. Lyman Trumbull (R., Ill.), who managed the Citizenship Clause in the upper chamber, explained that “subject to the jurisdiction” meant “not owing allegiance to anybody else,” whether to a tribe or a foreign power. Rep. John Bingham (R., Ohio), the moving force behind the 14th Amendment, used the same framework, referring after ratification to persons born in the U.S. “and not owing allegiance to any foreign power.” These statements, and others Mr. Lash identified, demonstrate how leading Republicans explained the concept the text was meant to capture: birth plus full political membership.
Opponents of this interpretation rely heavily on a statement by Sen. Jacob Howard (R., Mich.) that the clause would “include every other class of persons” besides children of diplomats. In isolation, Howard’s statement does support the challengers’ understanding. But it can’t be taken literally; otherwise it would include tribal Indians. Howard later said that the relevant “jurisdiction” was the “full and complete jurisdiction” that tribal Indians lacked. Republicans didn’t maintain that tribes lay wholly beyond federal power, but that tribal members maintained an undissolved allegiance to a separate sovereign political community.
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