In The Wall Street Journal:
In Trump v. Barbara, Chief Justice John Roberts
screams from the rafters that the framers of the 14th Amendment
affirmed “citizenship, then as now, was the right to have rights—freely
to participate in our community.” That’s contrary to history. The
framers made sure that the newly freed black citizens didn’t get the
vote, because if that benefit had been included, the amendment wouldn’t
have passed.
It took the 15th Amendment, ratified more than 1½ years later, to
enfranchise black Americans. And that still didn’t extend the franchise
to all adult citizens. In Minor v. Happersett (1874),
the Supreme Court unanimously held that although women were citizens,
the 14th Amendment didn’t confer on them the right to vote. The justices
applied the then-standard definition of citizenship as an exchange of
protection by the sovereign for loyalty of the citizens. It took the
19th Amendment to enfranchise women as a matter of constitutional right.
In the meantime, voting was left exclusively to the states. The Civil
Rights Act of 1866 covered only the private rights to contract, testify
and make wills. No political rights were involved.
The chief justice wholly failed to explain how his flawed originalist
methodology supported birthright citizenship for the children of illegal
aliens or temporary visitors. His blunder is captured in the false
proposition that birthright citizenship “crossed the Atlantic with the
colonists—and was adopted with little fanfare after the Revolution” as
an outgrowth of the common law of England.
Not so. English law had adopted a form of birthright citizenship—but, as
Blackstone noted, not as a common-law matter but because naturalization
“cannot be performed but by an act of parliament.” The English
statutory framework was explicitly rejected in the U.S. Alexander Hamilton
noted in Federalist No. 32 that the constitutional requirement of a
“uniform” naturalization law conferred exclusive jurisdiction on the
federal government, to the exclusion of the states.
The chief justice never cites that clause or the Naturalization Acts of
1790 and 1795, which limited naturalization to “free white persons” who
had resided in the U.S. for two years (later raised to five), were of
good character, and had explicitly renounced their loyalty to all other
sovereigns, and determined the status of minor children solely by the
status of their parents. That provision excluded all people of African
descent until reversed by the 1870 Naturalization Act, which didn’t
apply to people of Asian descent until after 1900. Chief Justice Roberts
then cites a group of irrelevant state-law cases, none of which deal
with birthright citizenship, but addressed such issues as the ability to
inherit under state law, to hold state office, or to vote in state
elections.
A key to the constitutional structure was the distinction between
“subject to the jurisdiction thereof” in the 14th Amendment’s
Citizenship Clause and “within the jurisdiction” in the Equal Protection
Clause. The latter isn’t limited to citizens, as the Privileges or
Immunities Clause is, but applies to all persons.
That rests on Blackstone’s explicit distinction between “local” and
“natural” allegiance. The former requires all persons to respect the
criminal and civil law while in a foreign nation, but ceases to bind
them on their departure. Local allegiance never confers any opportunity
to obtain citizenship, which natural allegiance does. The chief justice
incorrectly collapses the two into one by writing that “the Citizenship
Clause uses jurisdiction in its ordinary sense—referring to the power of
the United States to govern those within its territory.” The Equal
Protection Clause had nothing to do with citizenship. How could the 14th
Amendment confer automatic birthright citizenship when the 1870 statute
set out more-rigorous conditions to apply for naturalization?
Against this background, U.S. v. Wong Kim Ark
(1898) wrongly held that birthright citizenship attached to a man born
in the U.S. whose Chinese parents were legally resident in the U.S. In
so holding, Justice Horace Gray committed three major blunders. First,
the Naturalization Acts then didn’t make Asians eligible for citizenship
until after 1900. Second, Wong Kim Ark traveled on a Chinese passport
and thus hadn’t renounced his former sovereign. Third, an elaborate set
of treaties with China prevented any Chinese national from applying for
U.S. citizenship.
All these arguments are found in my friend-of-the-court brief, written
with Benjamin Flowers; in my extensive comments on the oral argument;
and in my recent book, “The Myth of Birthright Citizenship.” The chief
justice found it all too comfortable to ignore every objection.
Mr. Epstein
is a professor of law and NYU Law School, a senior lecturer at the
University of Chicago and a Senior Fellow at Civitas Institute.
