The Supreme Court has committed a grievous moral and legal error in Trump vs. Barbara, the landmark case on birthright citizenship. In holding that the 14th Amendment confers automatic citizenship on virtually all children born on American soil, the court has severely vitiated the sanctity of American citizenship — in this “America 250” celebration year, no less. Moreover, on a prosaic level, the court’s majority botched the basic constitutional question.
As this column has explained, the 14th Amendment’s Citizenship Clause was, per its principal author, Sen. Jacob Howard (R-Mich.), “simply declaratory of … the law of the land already.” As for “the law of the land already,” that was the Civil Rights Act of 1866, ratified by Congress two years prior to the 14th Amendment. That statute deliberately withheld blanket birthright citizenship for the children of those who are “subject to any foreign power.”
Thus, the Senate Judiciary Committee chairman at the time, Lyman Trumbull (R-Ill.), confidently stated during the amendment’s ratification debate that “subject to the jurisdiction,” the legally relevant 14th Amendment Citizenship Clause language, meant those “not owing allegiance to anybody else.” This is why Native Americans, whose allegiances in the 19th century were to their tribes, were not covered; it was not until the Indian Citizenship Act of 1924 that these children were granted blanket birthright citizenship. And if Native Americans’ children were not automatically covered, then illegal aliens’ children certainly were not.
This is consistent with the prevailing 19th century definition of citizenship, which was, as law professor Richard A. Epstein wrote recently for the Wall Street Journal, “an exchange of protection by the sovereign for loyalty of the citizens.” Justice Samuel A. Alito Jr.’s Barbara dissent cogently explicates this allegiance-based conception of citizenship, and Justice Clarence Thomas’ separate dissent is a masterclass in history.
It is shameful that Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett constitutionalized this fraught issue, rejecting Justice Brett Kavanaugh’s middle-ground statutory overture and thus removing the question of birthright citizenship — and all that it now entails, such as the execrable practice of “birth tourism” — from our normal democratic politics. To that extent, Roberts and Barrett have indeed given us a new Roe vs. Wade. Under a standard reading of Barbara, the case must be overturned, or a new constitutional amendment passed, in order to preserve the sanctity of citizenship.
But what if the standard reading of Barbara is wrong? President Trump responded to the court’s decision by calling on Congress to act. Most commentators dismissed this out of hand as a paroxysm of rage from an aggrieved party. But the president, it turns out, is actually grasping at an important point. Congress can, and should, act by declaring people without legal status to be in the U.S. and so-called birth tourists to be the functional legal equivalent of modern-day foreign army invaders.
There are four distinct clauses of the Constitution that reference invasion. And while the Supreme Court has never legally defined an “invasion,” law professor Josh Blackman has explained, in surveying the four clauses, that the “Constitution affords Congress, the president, and the states the power to declare an invasion — every branch except the judiciary.” Indeed, in recent years, the state of Texas under Gov. Greg Abbott has done exactly this.
Congress can do the same thing: It can stipulate, under its Article I, Section 8 power to “establish an uniform Rule of Naturalization,” that it is the sense of Congress that the United States has faced, and still does face, an “invasion” and that the children of the invaders shall not receive automatic citizenship at birth. Instead, Congress can clarify that those children can apply for naturalization using all extant, generally available means.
How does this square with Barbara? Simple: No serious person claims the children of foreign invaders are entitled to automatic birthright citizenship. Wong Kim Ark, the 1898 Supreme Court decision frequently invoked (if erroneously) by the Barbara majority and by birthright citizenship defenders everywhere, actually confirmed as much: Justice Horace Gray noted that the “children of aliens within territory in hostile occupation” are not “subject to the jurisdiction,” to use the relevant 14th Amendment language, of “the sovereign whose domains are invaded.”
Put simply, under Wong Kim Ark — and thus under Barbara as well — the children of invaders are not automatic birthright citizens.
Are birth tourists or people without legal status really “invaders”? Reasonable minds will differ. But recall that the Supreme Court has never defined the term — and for good reason, as such a determination is an inherently political question that is, per the 2019 Supreme Court case Rucho vs. Common Cause, “outside the courts’ competence and therefore beyond the courts’ jurisdiction.” It would seem that Congress can classify invasion as it reasonably deems fit and, if the president signs the bill, the courts would stay out of the way. Indeed, it is not inconceivable that all nine Supreme Court justices would duck on such “political question doctrine” grounds.
All of this is perfectly consistent with both Wong Kim Ark and Barbara.
The Supreme Court has made a profound error in a case of immense importance. Barbara can, and at some point likely will, be overturned on 14th Amendment grounds. And the passing of a constitutional amendment to overturn Barbara, though perhaps far-fetched, is a worthwhile effort even if it amounts to nothing more than a collective flexing of the sinews of self-governance in this milestone 250th anniversary year. But We the People are not otherwise helpless. Our representatives in Congress can act. They should do so posthaste.
Josh Hammer’s latest book is “Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West.” This article was produced in collaboration with Creators Syndicate. X: @josh_hammer