Not a Constitutional Slam Dunk
My very first professor in law school some 40 years ago taught us the two rules of statutory construction—first, read the statute…second, read it again. That’s because how you view things depends upon the lens through which you are viewing things. Sometimes you see what you want to see, or expect to see. That’s why you read it again.
For the past year, we’ve heard a lot about the Fourteenth Amendment to the U.S. Constitution and what it means. Spoiler alert: those who claim that a certain unique viewpoint is clearly unconstitutional either have their own narrative and agenda, or haven’t actually read the language of the amendment itself.
Last year, the Amendment was used to keep Donald Trump off state election ballots because in the post-Civil War period, a provision of the Amendment kept those who swore allegiance to the Confederacy from serving in our military or in elective office. But in a very unique provision, the last subsection of the Amendment specifically provides Congress with the power to pass legislation to enforce the Amendment. That’s why after more time post-Civil War had passed, Congress enacted a law rescinding those service limitations. Therefore, there was no Fourteenth Amendment power to bar those who led insurrections from actually trying to get elected; I’m using the phraseology of those who were against Mr. Trump being on the ballot, and as noted, their argument lost.
Now the issue is birthright citizenship, and the Amendment is clear that it applies to those who are subject to the jurisdiction of the U.S. That was included to recognize former slaves as citizens, but not children of Ambassadors here temporarily on behalf of other nations. And if you read the verbatim transcript of the Congressional debate on the issue, it’s pretty clear the provision was never intended to allow folks to sneak past our borders illegally and then claim their children born here are citizens (despite how that’s been interpreted over the past 150 years).
That’s why it’s irresponsible for, of all people, a judge to declare in a pre-evidentiary ruling that an executive order on birthright citizenship is “clearly unconstitutional”—because it’s actually anything but clear.
And remember that provision indicating Congress had authority to pass laws to enforce the Amendment? All this Congress has to do is pass a law banning birthright citizenship, and it’s done—without amending the Constitution, without an executive order. The Congress has the power to do that right now.
Whether they have the strength and the votes is another story.
