Dred Scott? Seriously?

By | 2018-07-26T23:55:56+00:00 July 26th, 2018|
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The radical Left’s resort to ad hominem attacks and allegations of “racism” against their political opponents has become so commonplace that the charges have become virtually meaningless. Apparently, the open-borders Right now thinks that by joining the catcalls, they can resurrect some of the old sting.

How else to explain the recent spate of scurrilous charges leveled against Michael Anton for daring to state that the 14th Amendment—as the Supreme Court itself has recognized—does not mandate automatic citizenship to children born on U.S. soil to parents who owe their allegiance to a foreign sovereign. Anton is anti-Black, anti-Asian, and anti-Hispanic—indeed, anti all non-white people—and even wants to restore the infamous holding in Dred Scott, claims The Federalist’s Robert Tracinski. He wraps himself in the flag “while loathing the republic for which it stands,” asserts Bill Kristol. His argument “is an offensive dumpster fire,” adds David Marcus, also at The Federalist.

These histrionics are not much different than those emanating from the left side of the spectrum. Garrett Epps, for example, says in The Atlantic that Anton’s position is the “constitutional equivalent of flat-earthism,” even Hitlerism. Mark Joseph Stern at Slate calls Anton’s argument “Racist, Ahistorical Gobbledygook.” What these over-the-top accusations from both the open-borders Right and the radical Left share is a refusal to confront the argument against them, which is usually a pretty good indication that they cannot. Better, then, to try to shut it down with name-calling.

What Jurisdiction Means
The argument they seek to avoid is pretty straightforward, and compelling. The language of the 14th Amendment’s citizenship clause contains two components. First, “all persons born . . . in the United States”; “and” second, “subject to its jurisdiction,” are to be automatically citizens. The phrase, “subject to the jurisdiction,” standing alone, can have two meanings: A full, allegiance-owing jurisdiction, and a partial, territorial jurisdiction. Anyone present in the United States (save for diplomats) is subject to her partial, territorial jurisdiction. Think of a British tourist temporarily visiting the United States on vacation, who is subject to the law that we drive on the right side of the road, not the left.

Even those who are in the country illegally are subject to our laws while here. Subject to the full jurisdiction, on the other hand, involves some kind of allegiance, such as arises when someone has become, or is in the process of becoming, part of the body politic. The issue, then, is which of these two meanings was intended by the drafters and ratifiers of the 14th Amendment.

On that, we do not need to speculate, because the question was posed directly to the leading sponsors of the 14th Amendment. Responding to the question whether the clause would mandate citizenship for “Indians” because they were “most clearly subject to our jurisdiction, both civil and military,” Senator Lyman Trumbull (R-Ill.), a key figure in the drafting and adoption of the 14th Amendment, responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”

Similarly, Senator Jacob Howard (R-Mich.), who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now.”

And what was the “same jurisdiction” that applied at the time? It was set out in the 1866 Civil Rights Act, which the 14th Amendment was intended to constitutionalize: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The slight variation in language was designed to address the issue that Indian nations were not “foreign powers,” but domestic ones; it was not designed to broaden the mandated citizenship to anyone who managed to make it to U.S. soil even while maintaining their allegiance to a foreign power.

Tested in the Courts
In the 
Slaughterhouse Cases (1872), the Supreme Court agreed. This was the first case to come before it after the adoption of the 14th Amendment, and the Court there noted that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” So much for the claim that the “subject to the jurisdiction” clause excluded only the diplomatic corps.

Granted, that was dicta, but it became holding a decade later, in the case of Elk v. Wilkins. There, the Supreme Court held that an “Indian” born on U.S. soil was nevertheless not a citizen by virtue of the 14th Amendment’s citizenship clause because the phrase, “subject to the jurisdiction,” required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Hence, the Supreme Court made clear that the phrase, “subject to the jurisdiction,” was used in the complete sense, not the partial, territorial sense. As Thomas Cooley noted in his authoritative treatise, “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

Much is made of the Supreme Court’s later decision in Wong Kim Ark, in which the Court held in 1898 that the child born on U.S. soil to Chinese immigrants was a citizen under the terms of the 14th Amendment. But Wong Kim Ark’s parents were permanently and legally domiciled in the United States, a point that the court went out of its way to emphasize. The holding of that case (as opposed to some of its broader dicta) therefore did not address whether the children of parents who were here only temporarily as visitors (“temporary sojourners,” to use the language of the day) and who continued to owe allegiance to a foreign power, were automatically citizens merely by birth on U.S. soil. And it certainly did not address whether the children of parents who were in this country illegally could lay claim to automatic citizenship. And no case since then has so held, either. Anyone who says otherwise is either ignorant or lying.

Race Has Nothing to Do With It
The perfectly sensible distinction drawn in the 14th Amendment is between those whose lawful and permanent residence in the United States evidences an allegiance to the United States, and those whose mere temporary presence (or even unlawful presence) evidences no such allegiance. This is true no matter the region of the world at issue. Someone from Western Europe who has illegally entered the United States, or overstayed a temporary visa, has no more claim to citizenship for her child born here than does someone from Asia, or Africa, or Central or South America.

Conversely, a child born on U.S. soil to anyone who arrived legally and has become a lawful permanent residence is a citizen no matter the nation of origin of the parents. Quite simply, race has nothing to do with it. Lawful, permanent residence, sufficient to make the parents “subject to the jurisdiction” of the United States in the full and complete sense, does.

More fundamentally, this original understanding of the 14th Amendment is in accord with one of the most fundamental tenets of the Declaration of Independence, namely, that legitimate governments are based on the consent of the people. What constitutes “a people” who consent to a particular government is in turn also based on consent, and it is a mutual consent, not a unilateral one. Just as the United States cannot unilaterally impose the duties of citizenship on peoples in other nations, so too, others cannot unilaterally claim the benefits of United States citizenship. That task is, under our Constitution, assigned exclusively to Congress, which has the power to set the rules for naturalization—which is to say, to define who should be offered citizenship.

Misreading the 14th Amendment to confer automatic citizenship on the children of temporary visitors and, even more troubling, on the children of those who have entered this country illegally, destroys the notion of consent, usurps Congress’s plenary power to set naturalization policy, and undermines the rule of law. Worse, it is a throwback to the old feudal notion that anyone born in the King’s realm is forever the King’s subject. Our Declaration of Independence renounced that archaic claim. We should be appalled that self-proclaimed intellectuals on both the Right and the Left want to resurrect it.

About the Author:

John C. Eastman
John C. Eastman is the Henry Salvatori Professor and former dean at Chapman University’s Fowler School of Law, and a senior fellow at the Claremont Institute.