Presidential candidate Donald Trump certainly stirred the political pot when he ventured the opinion that children born of parents who entered the United States illegally or have remained in this country illegally must, along with their parents, be deported.
The press, most notably, Megyn Kelly of FOX news has cleverly framed the issue by asking: Would you deport the children born to illegal immigrants in the United States? Would you deport these American citizens? Kelly assumes that children born to illegal immigrants in the United States are citizens of the United States. The amendment does not support that view at all.
The major argument against Trump, namely that such deportations would be a violation of the 14th Amendment of the United States Constitution, has been taken up even by political pundits on presumably conservative stations. FOX hosts like George Will, Bill O’Reilly and Charles Krauthammer, who wrote in a recent column, “If you are born in the United States, you are an American citizen. So says the 14th Amendment.” are taking Trump to task for his remarks.
Putting aside the legislative history of the amendment, which tends to support Trump’s argument, let’s take a look at the relevant section of the 14th Amendment that applies to this issue and lets further examine the language in three parts, keeping in mind that while the legislative history of the amendment is helpful, the language of the act, not its legislative history, governs. I will divide Section 1 of the amendment into three parts.
The 14th Amendment states in Section 1:
THE FIRST PART:
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. [My emphasis]
THE SECOND PART:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; [My emphasis]
THE THIRD PART:
nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [My emphasis]
The first part qualifies citizenship and limits citizenship to those subject to the jurisdiction of the United States. This is a very important predicate. It certainly can’t be argued that persons who entered this country illegally are under the jurisdiction of the United States, even though, they are bound by its laws and protections set forth elsewhere in the 14th Amendment. The second part applies only to citizens defined in the first part. The third part merely guarantees to all persons the federal protections guaranteed to all persons living in the United States. Simply put, if you break a law in the United States, you will be prosecuted under law and entitled to the process that is due all who enter our justice system.
On its face the Amendment does not say what the critics of Trump say it says.
To understand why, one has to understand a couple principles in constitutional construction. First, laws are not to be interpreted in a manner that would give them an unnatural meaning; second, the plain language of the law must be read to effectuate its purpose; third, if a provision of a law is subject to a qualification, the qualification or predicate must be read as controlling; fourth every word of a statute and, yes, even the Constitution itself must be given meaning and not deemed superfluous or meaningless; and lastly if a phrase or word is repeated it should be given the same meaning as first intended. If another term is used elsewhere, it must be assumed that the framers of the law intended the difference to distinguish one from the other.
Understanding this, we can say with certainty that Mr. Krauthammer makes the same mistake Ms Kelly makes when he writes: “If you are born in the United States, you are an American citizen. So says the 14th Amendment.” If that is what the 14th Amendment said, that might be the end of the debate. But that is not fully what the amendment says. The amendment itself qualifies the grant of citizenship with the words: and subject to the jurisdiction thereof.
If being “natural born” in the United States entitles one to automatic citizenship, why add the words “subject to the jurisdiction thereof”? The reason for this is because the predicate controls. Not all children born in the United States are American citizens. If they were the predicate would be unnecessary. But even more importantly, a child is not the property of the state. A child inherits the nationality, language, ethnicity and legal status of his or her parents’. I will discuss this aspect in more focused detail later. For now, it can’t be seriously doubted that the 14th Amendment does not bestow citizenship on children born of parents who entered this country illegally, since such parents can’t logically, be “subject to the jurisdiction of the United States, unless the U. S. government kidnaps them and claims them as its own. Jurisdiction over residents here illegally exists elsewhere, except that Part 3 of the 14th Amendment, as noted above, does grant these residents the rights of due process. Note, however, that the last Part of Section 1 uses different terminology. Here the language guarantees due process to a person living legally or otherwise within the jurisdiction of a state, as opposed to subject to the jurisdiction. An illegal immigrant is still a citizen of another nation. If you are here illegally, the United States has absolutely no claim over you. You are a citizen of another country. Period!
Hence, the language of Section 1 can only be read to concern children born to parents in this country legally. Since the state has no claim over the parents nationality, it can’t take their children and claim jurisdiction over them. That is kidnapping, and would give an unnatural reading to the language of Section 1, forcing the state to keep those who are here illegally, or separate parents from children too young to decide for themselves who they belong to. Does the amendment really lend itself to such an unnatural reading? To wit: you can stay but you have to dump your parents.
To read the clause any other way than the way Trump suggests would lead to the utter destruction of our nation’s immigration and naturalization laws, which are the exclusive prerogative of congress, contained in Art. I, § 8, cls. 4 & 18 of the U.S. Constitution. Indeed, if the amendment intended to circumscribe the power of congress, it would likely have said so.
Of the two occasions when the U.S. Supreme Court addressed this issue: one case involving the status of American Indians and the other concerning a child born to Chinese parents in this country legally and who had a permanent domicile and residence in the United States, in neither case did the court ask whether congress intended to establish citizenship outside of the power of congress to regulate who comes into our country and under what conditions they may stay or be made citizens
In no circumstance, in this writer’s opinion, could a court read the 14th Amendment as negating the process of attaining citizenship bestowed by congress. The rules of statutory construction should require any court to limit the 14th Amendment’s reach to children born of parents here legally and who enjoy a permanent status as the court ruled in U.S. v. Wong Kim Ark. (1898). The state may not take the children as its own, leaving the parents with an untenable Hobson’s choice and the children without parents.
Having said all that, the need for a constitutional amendment is unnecessary, nor is a new law necessary. This may, indeed, be one of those times when a court ruling is the best, though given the high court’s tendency to decide laws on politics and social acceptance, this way might also be a course with hidden curves and tortured logic. The 14th Amendment does not need to be reinterpreted, it merely has to be read, consistent with the laws of the United States, the constitution, and common sense.