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Trump promises unconstitutional action on birthright citizenship

Today, there is a new video going around where Trump promises to end birthright citizenship—that is, the principle that if you are born in America, with few exceptions you are automatically an American citizen. Here’s that video:


Now, dear reader, even if you agree with much of what he is saying, there is one part of this where he is dead wrong: The part where he says he can do it. That is because this is not merely a policy of the Biden Administration. It’s part of the Constitution. The first sentence of the Fourteenth Amendment 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.

‘Naturalized’ means that they went through the legal process of becoming a citizen of the United States. Previously, when talking about how Senator Fetterman’s staff got the Fourteenth Amendment wrong, we summed up the reason for this sentence:

[I]t repudiated Dred Scott v. Sandford, 60 U.S. 393 (1857), which declared that black people (free or slave) were not citizens of the United States and could not be made citizens of the United States. Under this amendment any person born here was a citizen as well as any person made a citizen by law.

If you were taught that Dred Scott was just about the Missouri Compromise, you were given an incomplete answer. Before the Supreme Court discussed the Missouri Compromise in Dred Scott, it said that Mr. Scott couldn’t even sue in federal court because back then you had to be a citizen in that kind of case, and he wasn’t a citizen and couldn’t be made a citizen because he was black. That decision was a horror show and one of the ugliest moments in Supreme Court history. For instance, it said that black people ‘had no rights which the white man was bound to respect.’


(We have seen some people say that this reflected the law at the time, but that would be contradicted by a case you might have heard of: The Amistad case, a.k.a. U.S. v. The Amistad, 40 U.S. 518 (1841) where those abducted Africans were found to have the right to kill their captors.)

And truly, the first sentence of the Fourteenth Amendment was one of the few times that a Supreme Court decision was not merely overturned by constitutional amendment, but was actually repudiated. If there is another instance of such repudiation by amendment, we can’t think of any.

For example, the Fourteenth Amendment was ratified in 1868. Two years later (in 1870), Rev. Hiram Rhodes Revels became the first black person seated as a (U.S.) senator. When racist democrats objected to his seating, they made a devious but admittedly smart argument: They said that Dredd Scott meant that Revels was not a citizen until 1868 when that case was overturned by the Fourteenth Amendment. Since the Constitution requires senators to have been a citizen for nine years, Mr. Revels was not qualified until 1877 at the soonest—or so the argument went. In rejecting it, the Republican majority—nearly the same people who wrote the Fourteenth Amendment—said in essence that the Dredd Scott decision was not merely overturned. They treated it as though it never existed.

Getting to immigration, some people have argued that somehow illegal immigrants are not ‘subject to the jurisdiction’ of the United States and, therefore, the argument goes, that can be used an exception to the principle of birthright citizenship. There are several problems with that, but most basically in what sense is an illegal immigrant not subject to U.S. jurisdiction? Bluntly, if your feet are in the United States, you are almost always under American jurisdiction. If an illegal immigrant crosses into Texas and murders someone in Dallas, the State of Texas can and will prosecute that person. The immigrant will not win the case by saying that as an illegal immigrant, he or she isn’t subject to Texas’ jurisdiction. This is true even if the victim is also an illegal immigrant. And if an illegal immigrant commits a crime under the U.S. Code (including illegal entry), that person can be prosecuted by the United States. Breaking our law doesn’t take a person outside of American jurisdiction.


(So, what does that phrase ‘subject to the jurisdiction thereof’ refer to? Those granted diplomatic immunity—which you will recall means they can break many criminal laws without facing consequences in America.)

Like it or hate it, if you are devoted to following the Constitution as written, you have to follow all of it—you can’t just ignore part of because you disagree with it. And if you think this is bad policy—and Trump is making a decent argument that it is—then the solution isn’t to ignore the Constitution but to amend it.

So, bluntly, Trump is promising something he can’t actually do—at least not by executive order.

Naturally, people had negative things to say about this promise:

Maybe on immigration, but Trump did three great things: Justices Gorsuch, Kavanaugh and Barrett. Literally, if Trump lost in 2016 to Hillary Clinton, the Supreme Court never would have overturned Roe v. Wade. Indeed, if Clinton had been able to replace Justice Scalia, we might have effectively lost the First and Second Amendments, too. They would have been on the books, but they would have been a shell of their former selves.


And as a wrinkle, DeSantis seemed to agree with Trump—at least as a Congresscritter?

And unsurprisingly, there were reactions in support:


It really isn’t.

But for our money, one of the more thoughtful responses came from @AndToddsaid. A long time ago, a journalist made this observation:

@AndToddsaid laid out how you apply that principle of taking Trump seriously, but not literally, to Trump’s promise on birthright citizenship:

That’s fair.


We are skeptical that they can actually do anything on the topic, but let’s hear the rest out:

That’s all fair enough, but literal truth matters to us. What Trump is promising can’t be done. There may be political value in saying it anyway, in the sense of moving the Overton window or even just bringing attention to the issue. But in that case, don’t forget the underlying reality of the situation: It won’t actually do anything in a direct way.


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