Ben Domenech, the publisher/editor of the website The Federalist, also publishes a daily email newsletter (which is very, very good and has shaped my daily web diet) called The Transom. Unfortunately, Ben is very pro-immigration and is unhappy about Donald Trump’s candidacy, particularly because Donald thinks immigration is a problem in this country and wants to do something about both the level of legal immigration and the issue of out-of-control illegal immigration. In today's Transom, here is how Ben began his snarky piece on Trump and immigration:
Yesterday Future Greatest American President Donald Trump unveiled his first major policy white paper, concerning the only policy subject on which he has weighed in repeatedly: those damn dirty Mexicans. http://vlt.tc/21zj It is a perfect example of what Scott Adams has described as Trump’s clown genius ability to use intentional exaggeration to provide anchors for your brain, and persuade your subsconscious to think things you would never originally think. http://vlt.tc/21zy For instance, Trump’s plan involves the deportation of millions of people, the seizure of money sent back to Mexico by illegal immigrants, and an end to birthright citizenship. Nowhere in this white paper is the how of what Trump would do addressed. Not the massive new hiring of a force to displace millions of people; not the invasion of privacy necessary for the government to open every parcel sent to Mexico and investigate every wire transfer sent there or elsewhere lest the source be illegal; not the fact that ending birthright citizenship will require a Constitutional amendment. Trump’s white paper just says he will do it in three sentences, one of which is “End birthright citizenship.” The understanding that children born here in America, even those born to non-Americans, are citizens dates back to the Founding generation, which was of course full of people who were not as wise as Mr. Trump. Those losers had no idea the sort of carnage their dumb ideas would unleash. Perhaps their own glorious triumph over the dirty brown people they encountered gave them false confidence about protecting our jobs. It’s understandable given Trump’s identity politics play that he would continue on this line of thought – that terrible immigrants are destroying our economy, and terrible children of illegal immigrants are so burdening our social services that they, even as legal American citizens because of the stupid Constitution, must be deported along with their families. Of course, ending birthright citizenship would create European-style generational ghettos in American communities.
Believe it or not, Ben’s piece gets worse (now, 100% more snark!) – he continues by showing us a bunch of pictures of naturalized, birthright American citizens (e.g. Bobby Jindal and Marco Rubio, born to immigrant non-Americans, Trump’s sister because Donald and his sister had a Scottish mother – although with an American dad I don’t think the Trump kids’ citizenship is even in question) and essentially says to us ‘rubes’ who oppose current immigration policy – ‘see you fools, if you dare to change anything about our current immigration policy we won’t have Marco Rubio in the Senate or Bobby Jindal leading Louisiana or Donald Trump as the businessman/entrepreneur you love making America great!’
Well, first of all, let’s agree that both side engage in argument from anecdote (which my side in the immigration wars has fun with as well – look, here is Francisco Lopez-Sanchez, who was deported multiple times and was free to gun down an innocent woman only because San Francisco wouldn’t cooperate with federal authorities when those authorities asked the city to notify them when they planned to let Lopez-Sanchez out of jail.) I’d much rather take a broader, data driven look at the immigration question, which of course I think favors a serious re-think of our current policies, especially all the silly, simple happy talk about Hispanic family values given that Hispanics have an over 50% out-of-wedlock birthrate (a rate that has moved up, in the wrong direction, over the past 25 plus years.)
But this post isn’t even an anti-immigration rant full of data and studies in support of an immigration moratorium. Instead, I wanted to hone in on Ben’s particularly nasty allegations in his second paragraph – the idea that anyone who thinks birthright citizenship is a legal fiction not only disagrees with Ben but somehow disagrees with the Founders! How dare we! And how dare we question the idea that millions of unskilled Hispanic immigrants are anything but an unqualified good for native American unskilled workers. This is the kind of paragraph you’d find at the The Nation or The New Republic and quite frankly, is unworthy of Ben’s talents: what has gotten into him?
Surely Ben must know that there are plenty of serious scholars who think that the Supreme Court got it wrong in United States v. Wong Kim Ark and that the Fourteenth Amendment was not designed to confer birthright citizenship on illegal aliens. As John Eastman explains in this article about the Fourteenth Amendment:
The Citizenship Clause of the Fourteenth Amendment provides that "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." As manifest by the conjunctive "and," the clause mandates citizenship to those who meet both of the constitutional prerequisites: (1) birth (or naturalization) in the United States and (2) being subject to the jurisdiction of the United States.
The widely held, though erroneous, view today is that any person entering the territory of the United States-even for a short visit; even illegally-is considered to have subjected himself to the jurisdiction of the United States, which is to say, subjected himself to the laws of the United States. Surely one who is actually born in the United States is therefore "subject to the jurisdiction" of the United States and entitled to full citizenship as a result, or so the common reasoning goes.
Textually, such an interpretation is manifestly erroneous, for it renders the entire "subject to the jurisdiction" clause redundant. Anyone who is "born" in the United States is, under this interpretation, necessarily "subject to the jurisdiction" of the United States. Yet it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.
The "subject to the jurisdiction" provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child's parents, remained a citizen or subject of the parents' home country was not entitled to claim the birthright citizenship provided by the 1866 Act.
The jurisdiction clause of the Fourteenth Amendment is somewhat different from the jurisdiction clause of the 1866 Act, of course. The positively phrased "subject to the jurisdiction" of the United States might easily have been intended to describe a broader grant of citizenship than the negatively phrased language from the 1866 Act, one more in line with the modern understanding. But the relatively sparse debate we have regarding this provision of the Fourteenth Amendment does not support such a reading.
When pressed about whether Indians living on reservations would be covered by the clause since they were "most clearly subject to our jurisdiction, both civil and military," for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that "subject to the jurisdiction" of the United States meant subject to its "complete" jurisdiction, "[n]ot owing allegiance to anybody else." And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean "a full and complete jurisdiction," "the same jurisdiction in extent and quality as applies to every citizen of the United States now" (i.e., under the 1866 Act). That meant that the children of Indians who still "belong[ed] to a tribal relation" and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin explicitly to exclude "Indians not taxed," as the 1866 Act had done, was rejected as redundant.
The interpretative gloss offered by Senators Trumbull and Howard was also accepted by the Supreme Court-by both the majority and the dissenting justices-in The Slaughter-House Cases. The majority in that case correctly noted that the "main purpose" of the clause "was to establish the citizenship of the negro" and that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States." Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Bradley in dissent from the principal holding of the case, likewise acknowledged that the clause was designed to remove any doubts about the constitutionality of the 1866 Civil Rights Act, which provided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power.
Although the statement by the majority in Slaughter-House was dicta, the position regarding the "subject to the jurisdiction" language advanced there was subsequently adopted as holding by the Supreme Court in Elk v. Wilkins. John Elk was born on an Indian reservation and subsequently moved to non-reservation U.S. territory, renounced his former tribal allegiance, and claimed U.S. citizenship by virtue of the Citizenship Clause. This Court held that the claimant was not "subject to the jurisdiction" of the United States at birth, which required that he be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance." Elk did not meet the jurisdictional test because, as a member of an Indian tribe at his birth, he "owed immediate allegiance to" his tribe and not to the United States. Although "Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states," "they were alien nations, distinct political communities," according to the Court.
Eastman goes on to argue that the Court erroneously decided the later Wong Kim Ark case and he even does an excellent job of explaining some basic political theory related to what the Founders understood citizenship to mean and how birthright citizenship goes against our founding republican principles! Read the whole thing as the kids like to say.
Eastman is no crank and there are other constitutional lawyers like him who think seriously about the Founding, the Fourteenth Amendment and our current immigration system and would surely agree with Mr. Trump that reforming birthright citizenship makes sense. Furthermore, as Mark Steyn notes, while Ben might sneer at the lack of specifics in the Trump white paper on immigration, the basic ideas are indeed serious and worthy of respect:
1. A nation without borders is not a nation. There must be a wall across the southern border. 2. A nation without laws is not a nation. Laws passed in accordance with our Constitutional system of government must be enforced. 3. A nation that does not serve its own citizens is not a nation. Any immigration plan must improve jobs, wages and security for all Americans.
In other words, as every functioning society understood until two generations ago, immigration has to benefit the people who are already here. Government owes a duty to its own citizens before those of the rest of the planet - no matter how cuddly and loveable they might be. The fact that it is necessary to state the obvious and that no "viable" "mainstream" candidate from either party is willing to state it is testament to how deformed contemporary western politics is. Trump may not be a "real" Republican or a "real" conservative, but most of his rivals are not "real" - period, as Carly Fiorina would say.
Ben Domenech has every right to be pro-immigration and make his case. He has every right to poke fun at the anti-immigration positions of his opponents. But to continually cast us in the worst possible light, to mock us as unworthy of serious consideration, to dismiss serious constitutional questions around birthright citizenship as out of bounds – these are not the actions of a confident and honorable opponent. Ben, you don’t have to take Trump seriously but please give the courtesy of taking his ideas seriously – many conservatives (and independents) do not share your views on immigration and want to change this country’s policies. Trump speaks to our desires.