Podcast: Does the Constitution Require Birthright Citizenship?

Jeffrey Rosen: [00:00:07] I'm Jeffrey Rosen president and CEO of the National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is the only institution in America chartered by Congress to disseminate information about the Constitution on a nonpartisan basis. Recently President Trump proposed to end birthright citizenship through executive order. The proposal has set off vigorous commentary. Does the president have the authority under the Constitution to end birthright citizenship? Could Congress do it by statute if the president can't do it by executive order and what does the Constitution mean in the 14th Amendment it states - and We the People listeners I want you to bring out your interactive constitutions - 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. Joining us to discuss this crucial constitutional question are two of America's leading commentators on it. Akhil Amar is Sterling Professor of Law and Political Science at Yale Law School and the author of many acclaimed books including most recently The Constitution Today. Akhil is the co author of the interactive constitution's explainer on the citizenship clause with John Harrison. And dear We the People listeners I want you to check out the common explainer right after the podcast. Akhil, it's so wonderful to have you back on We the People. And Edward Erler is senior fellow at the Claremont Institute and professor of political science emeritus at California State University San Bernardino. He is the co-author of the book The Founders on Citizenship and Immigration and has argued that birthright citizenship can and should be reformed without violating the Constitution. Professor Erler thank you so much for joining us.

Edward Erler: [00:02:01] My pleasure.

Rosen: [00:02:03] Professor Erler let's begin with you. What did the framers mean by the phrase subject to the jurisdiction thereof and why have you concluded that they did not believe to include the children of illegal aliens in the United States in their notion of birthright citizen?

Erler: [00:02:20] Well of course as you know that's the crucial question. The Citizenship Clause of the 14th amendment was introduced at a very late date and it was suggested that citizenship clause or a definition of citizenship was necessary because it had already been adopted - a provision had already been adopted that privileges and immunities of United States citizens would be guaranteed. So Senator Wade suggested that the definition of citizenship should be: all persons born or naturalized should be citizens of the United States. That suggestion went to the Joint Committee on Reconstruction and the committee took up the issue and came back with a provision that said: All persons born or naturalized and subject to the jurisdiction were citizens of the United States. The committee evidently put considerable weight on the provision “subject to the jurisdiction of the United States.” The Citizenship Clause was introduced into the Senate by Jacob Howard. He said this was not an innovation and it was only a codification or a reaffirmation of the law of the land as that already existed. He was obviously referring to the Civil Rights Act of 1866 which had been passed over President Johnson's veto only six weeks earlier. The Civil Rights Act of 1866 was the first definition of citizenship, after the ratification of the 13th Amendment and remember this was passed by a two thirds majority of both houses of the Congress. So it enjoyed widespread support of the Congress. That definition of citizenship said all persons born or naturalized and not subject to a foreign power were citizens of the United States. So when Jacob Howard submitted the citizenship clause he knew that the Civil Rights Act of 1866 did not include persons who were subject to a foreign power. And so the citizenship clause that he introduced as you read at the outset was read to the floor of the Senate and someone objected immediately that this would include native persons. Howard said no it would not because they were considered to be foreign nations and they didn't owe allegiance to the United States but they owed allegiance to their tribes. They were considered to be foreign nations. In other words they're considered to be foreigners not owing allegiance to the United States. Senator Trumbull who had been the author of the Civil Rights Act of 1866 came to the support of Senator Howard and said yes subject to the jurisdiction meant owing allegiance to the United States and not owing allegiance to any other country, owing complete allegiance to the United States, subject to the complete jurisdiction of the United States. And that's what we take to mean to be the meaning of the jurisdiction clause of the 14th Amendment. It doesn't mean subject to the laws of the United States or merely subject to the courts of the United States. It means owing allegiance to the United States, being subject to complete jurisdiction of the United States and the exclusion of those who are not subject to birthright citizenship means those who owe allegiance to foreign nations who are subject to foreign nations - they are excluded. And I presume that means the children born to illegal aliens whose parents owe allegiance to other nations would be excluded from jurisdiction of the United States.

Rosen: [00:06:53] Professor Amar in your separate statement on the interactive constitution you strongly disagree with this interpretation and you say anyone born in America under the American flag is a citizen even if his parents are not citizens and indeed even if his parents are not here legally. Tell us why you believe that is the case.

Akhil Amar: [00:07:11] It's not just I who believe it it's basically I would say candidly I'd be very shocked if if that view were not held by every single member of the current United States Supreme Court and then that includes my student Brett Kavanaugh and many people that I work pretty closely with and it includes basically virtually every constitutional scholar who teaches constitutional law in a law school, left right and center who has weighed in on this, people who are law trained from Michael McConnell, a George W. Bush distinguished appointee to the bench now professor at Stanford, my collaborator in a recent op ed Steven Calabresi, the founder of the Federalist Society, other leading Federalist Society people like George Conway who is the spouse of Kellyanne Conway who works for President Trump. So this is actually the- the virtually every opinion issued by the executive branch of government, I can quote several, and leading Supreme Court opinions and so it's really the consensus view of lawyers left right and center. And by the way if the argument that we've just heard is that illegal aliens owe their allegiance to other countries well actually that would be true I guess of legal aliens too that they- and some of them may not be green card holders, they may be citizens, they may seem- they may be still students, they may be visitors on tourist visas, and other things. I myself was born in Ann Arbor Michigan and my parents at the time, they weren't here illegally but they also weren't United States citizens. So I've thought about this an awful lot and I've studied it a bit. So let me give your audience some general background and it's a mistake to start as late as 1866 or 1868. Let's start with that landmark opinion by the Court of Chancery of New York. And I'll tell you why we're starting there because Lincoln's attorney general thinks that this is the key passage and he, in 1862, Lincoln's Attorney General, Bates, in 1862 says people who are born in America of alien parents are citizens of the United States. That's in1862 responding to Dred Scott. And he cites, this is actually what he says in his opinion of the attorney general in 1862: I am quite clear in the opinion that children born in the United States of alien parents are citizens of the United States. And then he says I might sustain this principle by referring to longstanding principles of English common law that apply in modified form in the United States. But all this has been well done by assistant vice chancellor Stanford in the case of Lynch v Clark. And he cites this case of Lynch v. Clark. It's a new york opinion, 1844, and Lincoln's attorney general says this is the key decision. And here's what that decision says I'm quoting. Basically everyone born United States is a citizen with quote the exceptions are the children of ambassadors who are deemed to be born within the legions of a foreign country. Here's the bottom line payoff. Upon principle therefore - this is the judge in 1844 - I can entertain no doubt that by the law of the United States every person born within the United States whatever the situation of his parents is a natural born citizen. No one inquires further. No one asks whether his parents were citizens or were foreigners. It's enough that he was born here. Whatever the status of his parents and again he's made an exception for children of foreign ambassadors and he's also appealing to English rules that say, Oh when there's a foreign army that's occupying territory that might be different as well. So that's 1844 long before all of this. Dred Scott comes along and says oh blacks can't be citizens even if they're born in the United States, and Bates, and Lincoln thinks Dred Scott is a wrong decision. And he is elected president and he has his attorney general weigh in in 1862 10 opinions of the attorney general at 328 and it's just a one paragraph discussion by Bates. He follows it up later and the question is citizenship - this is the issue - quote citizenship of children born in the United States of alien parents. He says it's clear it's obvious - that's 1862 - and then he follows it up with a longer opinion later in 1862. But then the question is can the executive just do this on his own? The Supreme Court has said one thing can the executive on his own say something else? Remember that question audience because it's going to be the question for Trump because the Supreme Court will have weighed in on my side later in our conversation. And so that's why you get the statute in 1866 which as you've just heard says and I quote 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. So that's an 1866 statute but by mere statute can you modify the rule of Dred Scott which seemed to say otherwise? That blacks can't be citizens. And so then you have the first sentence of the 14th Amendment. That's a codification of the Civil Rights Act of 1866 which is a codification of what Bates said which is a codification of what the New York Court of Chancery said in 1844 which goes back to all sorts of English principles that say as a general proposition even if you're a child of aliens you are a citizen. And then talk about the cases that are decided there after that confirm all of that, with two basic exceptions in America. One is children of diplomats and the other is tribal Indians who basically are in a quasi sovereign separate enclave in the 1860s. And then in England there was an exception that doesn't really matter to America at all that the cases talk about which is what happens if you have people born behind enemy lines when there's actually an occupying army the way the United States occupied Germany say after World War II. But that's not really relevant today. And that's what the cases are going to say. And no one in the reconstruction Congress clearly said anything otherwise. And the- and when I I emphasize all of this, this was the settled understanding by the Republican lawyers before the 14th Amendment was adopted. It's based on Bates, who was basing it on this 1844 case that he explicitly references.

Rosen: [00:14:34] Professor Erler, You have argued that the reconstruction Congresspeople did think differently and saw broader exceptions than just the children of diplomats and tribal Indians. And you have pointed to a statement by Senator Jacob Howard: This will not of course include persons born in the United States who are foreigners, aliens - I'm reading from the whole quote - who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons. So that's the quotation from Senator Howard. Tell us why you think that that supports broader exceptions for birthright citizenship than Professor Amar suggested.

Erler: [00:15:14] Well I think it supports the broader restrictions because Senator Howard and Senator Trumble who is the chairman of the Senate Judiciary Committee and many others said so. No one in the reconstruction Congress said that the 14th Amendment adopted the English common law of citizenship. In fact it could not have adopted the English common law of citizenship for one very significant reason: the English common law of citizenship was rejected by the Declaration of Independence. Let us not forget in Blackstone there is no such thing as citizenship. Blackstone says that anyone born within the protection of the King owed perpetual allegiance, perpetual allegiance as a debt of gratitude to the king that was perpetual subjectship. There was no citizenship. Blackstone Does not use the word citizen in his four volume treatise on the English common law so that the Declaration of Independence says that the American people have absolved their allegiance to the British crown. This was a violation and a rejection of the English common law. It is impossible to believe that the American founders were adopting the English common law as the basis of American citizenship at the same time that they were foregoing or absolving themselves of allegiance to the British crown; in other words they were rejecting the English common law. They base American citizenship on consent. The consent of the governed and the declaration says that just powers of government are derived from the consent of the governed and no one could be ruled or become a citizen without his consent. I think it's very very very clear and the Framers took consent very very seriously, very seriously. Social contract basis of government was the idea that suffused the entire founding. The idea that the Dred Scott decision rejected jus solis as the basis of citizenship is simply wrong. The reason that Chief Justice Taney said that blacks of African descent could never be citizens was the fact that in his opinion the Declaration of Independence didn't include blacks of African descent and because they were not included in all men are created equal. He said they were not part of the people who framed and ratified the Constitution and he was mistaken in that regard because five states allowed free blacks to vote in the election that ratified the Constitution and the dissent in the Dred Scott case pointed this out, that an historical error that Taney made, that free blacks did in fact participate in the election that ratified the Constitution. So they were part of the people who ratified the Constitution. This was a massive error that Taney made but it wasn't the Dred Scott decision that repealed jus solis. It was the Declaration of Independence that rejected the common law basis for citizenship and no one in the reconstruction Congress ever suggested that the English common law was to be the basis of American citizenship. And this business about consensus - there have been consensus among lawyers and legislators from time to time for example that thought that separate but equal was the law of land and should be the law of the land. That doesn't make any difference. We believed that at one time when we no longer believe it. We see it was bad constitutional law at the time and it is still bad constitutional law. And I think birthright citizenship was never intended to be part of the 14th Amendment and it should not be part of the 14th amendment today. It was never intended by the framers to be part of the 14th Amendment. And I think it should be repealed. Most modern industrial nations have rejected birthright citizenship. England in 1981 stopped its birthright citizenship because Blackstone said birthright citizenship was a part of a feudal inheritance. It was the relation of master and servant. It was not suitable for a republican form of government and I think our framers realized that. By the way, Senator Trumbull who is the author again of the Civil Rights Act of 1866 said that he thought of using the word allegiance instead of- in the Civil Rights Act of 1866. But he found that it was a term of art under the English common law and that there was such a thing under the Common Law as temporary allegiance that we would- if he had used that word in the Civil Rights Act we would have had to have given birthright citizenship to those who were only temporary in the country. Under the English common law those who had temporary allegiance instead of perpetual allegiance, those who were born under the protection of the king had perpetual allegiance by the way which could never be put off or cancelled in any way without the permission of the king. But those who were in the country in the country temporarily had temporary allegiance and their children were not birthright subjects of the king. But if we had used that language in America in the civil rights act of 1866 those people who were temporarily in the country would have been given birthright citizenship. And Senator Trumbull said we had no right and we had no need to give those people birthright citizenship. And that's why he didn't use the word allegiance in the civil rights act. And that's the same reason that the framers of the 14th Amendment didn't use the word allegiance in the 14th Amendment. They chose the word jurisdiction and jurisdiction was the Republican substitute for the word allegiance which occurred in the common law. It was a rejection of birthright subjectship and a feudal relic that was rejected by the Declaration of Independence and the American framers. It should be recognized that birthright citizenship or birthright subjectship as it appears under the common law has to be gotten rid of.

Rosen: [00:22:57] Thank you so much for that. So just to review some of the terms the important terms we're talking about Professor Erler you've just argued that jus solis which is citizenship determined by place of birth as opposed to jus sanguinis which is citizenship determined by blood was embraced by the English common law and the idea of birthright citizenship or subjectship and you say that that notion was repudiated by the Declaration of Independence which instead based citizenship on the consent of We The People. Professor Amar your response to all of those arguments.

Amar: [00:23:30] Well there's some similarities, some overlap between us but I'll go through what they are but none of that comes close to establishing this utterly outlandish proposition that people born in America of alien parents are somehow not citizens. Here's some common ground: That the rules in England are a little different. In England basically they don't- at the time of the founding or even at the time of the Civil War they have an idea of being subjects to the king and not quite an American idea of citizenship. In England they have an idea of perpetual allegiance and the way you're born you can't change that. Just like you can't divorce your parents you can't you can't unilaterally dissolve a tie to that the king under whose protection you're born. We Americans I agree with the professor don't believe that we think that you actually can renounce your allegiance to the Crown and for example become Americans. So that's different. That's not the question though of whether there's birthright citizenship. It's whether you can renounce your birthright and whether you're born in the United States of American parents or born in the United States a foreign parent actually naturalized, and then later choose to to go to some other country, to go back to your original country, it's your right to be a citizen and you're allowed to repudiate that. And the English don't let you do that. So that's a difference. But that doesn't answer the question whether it's your birth right to be a citizen on the day you're born and asked to consent of the governed. Consent is given by the 14th Amendment itself, by the Civil Rights Act of 1866 itself, by repeated statutes thereafter including one in 1952 saying it is the policy of the United States that people born here under our flag are citizens whether their parents are aliens or not. In that way it's a little bit like the English rules although there are you can renounce it and it's citizenship not subjecthood. But then the question is Under what conditions did we the people grant that consent. And the answer is yes we have to look at those words subject to the jurisdiction. Now I'll come back to that in just a second. Here's a second area of agreement. Dred Scott said some preposterous things. And it was wrong. We're in agreement about that. Now let's go through actually again what Americans say on this. In 1844 this landmark New York decision says following the policy of our nation that America has been to bestow the right of citizenship freely and with a liberality unknown to the old world. We're going to be different than the old rule we're going to give citizenship more broadly and just to repeat no one - here's the sentence - I can entertain and no doubt, says the judge in 1844, that by the law of the United States every person born within the Dominion and allegiance to the United States whatever the situation of his parents is a natural born citizen. No one inquires further. No one asks whether his parents were citizens or foreigners. It's enough that he was born here. Whatever the status of his parents. And remember he had earlier made an exception for children of ambassadors. And in that he's borrowing from English law. But he's saying it's different from English law because its citizenship. And it is renouncable if you want it to be. That's 1844 then 1862 Bates says it's clear. He says I'm quite clear. I mean it's hard for the language to be, the English language to be more clear, that citizens born in United States of alien parents who've never been naturalized are native born citizens of the United States. There is nothing in 1866 that has been quoted on the other side that repudiates any of that. In fact that the quotations that are used are taken out of context. they're actually misrendered. A word is is stuck in, a word “or” that even the National Review actually published some of this stuff actually backed away from and repudiated. Show me a clear statement saying all of that's wrong. Bates is wrong. Lincoln's attorney general was wrong. 1844 was wrong. You will not find it. And then there are later cases, there are landmark opinions by the Supreme Court. Wong Kim Ark, Plyler vs. Doe that reaffirm that subject to the jurisdiction basically means alien armies and children and ambassadors and Native Americans living in tribes. Now I want to say two other points because they actually are key about the original intent. In the 1860s there are racists out there in the 1860s and they say now wait a minute this birthright citizenship. Do you mean that it's a child of a Chinese person who's not able himself to be a citizen but their kid if born in the United States is a citizen. The framers of the 14th Amendment say yes that's exactly what we mean. The status of the parent isn't communicate to the child. So even though the parent is not and cannot be a U.S. citizen the child born of that parent will be a U.S. citizen under the rule that we're proposing. So they try to play the race card about gypsies the Roma and Chinese and explicitly the Republicans say no we're with Bates. We're that 1844 ruling. Second there are people in the United States in the 1860s who actually are in effect illegal aliens. Dred Scott says it took Times about two things one whether free blacks can be citizens and I agree with Professor Erler that they can and that the dissent is right and Dred Scott and and blacks voted for the Constitution and fought it at places like bunker hill. But now let's talk about slaves not free blacks but slaves and slaves. The entire purpose of the 14th Amendment is to ensure the core purpose that children of slaves are American citizens. Dred Scott says if you're descended from slaves you can't be an American citizen. The 14th Amendment says and the civil rights act of 1866 says on the contrary whether you're born as slaves or not if you're born in America you're an American citizen. Now some of the slaves that they're talking about were technically here illegally. They were smuggled into the United States in violation of a congressional statute passed in 1807. It's the act of March 2nd 1807 that prohibits slave importation from Africa. And yet people were imported from Africa in violation, slaves, in violation of that. Conservative estimates put that number in the tens of thousands. There are tens of thousands of illegal aliens in America. There were slaves smuggled in and it's utterly clear that the children of those illegal aliens were citizens. By the Civil Rights Act of 1866 and by the 14th Amendment. And so now we have two different examples. And by the way some of the people who are illegally here in the United States today were actually the product of sex trafficking and international slavery regimes and the like. So even today there are unfortunately people in America who are here- they were brought here perhaps illegally but their children are every bit as much, if they're born in the United States, citizens of the United States, as children of slaves in the 1860s. So two different examples where they clearly understood that the status of the parent would not be visited upon the child and that's what Bates and the 1844 thing says: we don't ask about the parents. We may not even know who the parents are. A foundling born in Kansas with a- and you find the Foundling and it's one day old and there's the umbilical cord sticking out, you don't know who the person's parents are but you know they were born in United States. We don't ask about the status of the parent - whether they're gypsies and can't be U.S. citizens or Chinese people- Chinese aliens who can't be united states citizens - their children are citizens whether or not they're- unless they're the children of diplomats. And children of slaves some of whom were here illegally, it doesn't matter. If they're born in the United States they are citizens of the United States. This is these are core meanings of the 14th Amendment and the civil rights of 1866. And I promise you that that's exactly what the court says in great detail, the United States Supreme Court, in a case called Wong Kim Ark. It goes through and and maybe in the next go round I'll you know quote you passage after passage after passage from Wong Kim Ark basically saying subject to the jurisdiction just means basically alien armies, children of diplomats, and they appeal for all of that to English law. They say English law doesn't apply wholly but in these respects actually it's- we call them citizens not subjects, you can renounce not like Britain, but in other ways actually yes we are borrowing the law of the soil. If you're born in America you're a citizen; unless your parents were diplomats, you're born behind enemy lines in an occupying army or you're a member of an Indian tribe that's like its own separate nation within the United States. And that's what subject to the jurisdiction means as Wong Kim Ark- the more modern Supreme Court has endorsed this, Plyler vs. Doe. So the text of the Constitution is clear, the history of the Constitution is clear, the precedents are clear. They all point in the same direction. Oh and by the way even if all of that were wrong there are statutes more recent than 1866 that say the same thing; statutes passed for example in 1952 after Wong Kim Ark is on the books say, here's what subject to the jurisdiction means, saying that. And the idea that a president unilaterally could disregard these statutes and the Constitution. This is an extremely eccentric position bordering on the crackpot.

Rosen: [00:34:06] Thank you very much for that. Professor Erler of course your response to a number of points Akhil made including: he cited that the quotation from Senator Howard that you've relied on, also relied on by Michael Anton in the National Review. He's the spokesperson for the National Security Council on whom President Trump relied, and Akhil Amar, suggesting that there was an “or” inserted into the quote that changed its meaning, the quote is: this will not of course include persons born in the United States who are foreigners, aliens and then Mr. Anton inserted an “or”, who belong to the families and ambassadors. And then Professor Amar also introduced the Wong Kim Ark case. So your thoughts about why that case which applied to the children of illegal aliens does not apply to the children of illegal aliens would be great.

Erler: [00:34:57] I'm the one who originally inserted the “or” in that quote because I thought it clarified it and I still think the bracketed “or” is justified. I wrote a response to the editors of National Review which they posted justifying the use of the “or,” using Jacob Howard's own words because after all he said that the reason that he didn't repeat the language of the Civil Rights Act saying Indians not taxed are excluded was that he regarded Indians as foreigners. So in that statement that he made he resisted the Indians in the 14th Amendment language because he regarded them as foreigners inhabiting a foreign nation, he said. We've always thought of Indians as being members of foreign nations and so they were part of the foreigners that he included there. And I gave plenty of other evidence including the Civil Rights Act of 1866 which he said, those who are subject to a foreign power, we are not eligible for birthright citizenship. I don't see how you can get any clearer than that. But I think that Professor Amar sees the 14th Amendment as somehow repealing the Civil Rights Act of 1866. The Civil Rights Act of 1866 does in fact exclude those who are subject to a foreign power from birthright citizenship so that people who come here illegally are obviously subject to a foreign power and the Civil Rights Act excluded them from birthright citizenship, and now he would say that the 14th amendment includes them in birthright citizenship. So you have an incompatibility between the 14th Amendment and the Civil Rights Act of 1866. And I don't know of anyone who makes that argument. Now I don't know what statutes that the professor is referring to but I don't believe that there is any case on point that says except in dicta that says that children of illegal aliens are considered to be citizens of the United States. I don't think there is a case and I don't think that Plyler vs. Doe does say that. After all the children that were involved in that case were in fact illegal aliens. And so I don't think that case is on point. Let me just say something about Wong Kim Ark, the argument in Wong Kim Ark, we have to remember that his parents were legal aliens. They were in the country legally but they were not eligible- they could never become citizens of the United States. They were barred from citizenship by treaty and by statute and they professed allegiance to the Emperor of China. So Wong Kim Ark was born in the United States and the question was whether or not he was a citizen of the United States. Now Justice Gray who wrote the majority decision there said that the 14th Amendment was premised on the English common law. But his argument there was the perfect nonsequitur. He said this: that the framers of the Constitution were perfectly aware and had studied the English common law and of course everyone concedes that the legal education at the time largely consisted of studying the English common law, so that's no surprise, but because they had studied the English common law we must read the Constitution in the light of English common law and that of course that makes no sense. Madison himself had said that whatever, in the Declaration of Independence, whatever in the common law that contradicts the principles of the Declaration of Independence was repealed by the principles of the revolution. Havari argued that birthright subjectship is utterly incompatible with the principles of the Declaration of Independence. So there is no notion that birthright subjectship survived the principles of the Declaration of Independence. As a matter of fact, Chief Justice Fuller's dissent in Wong Kim Ark makes precisely that argument. In fact it used to be a principle of constitutional construction prior to Wong Kim Ark that the principles of the revolution repealed anything in the English common law that was inconsistent with those principles. I think that principle of constitutional construction should have prevailed in the Wong Kim Ark case. The idea for example Justice Gray noted that was in the English Common Law only talk about subjectship, but he said something utterly fantastic that for our purposes subject and citizen were convertible terms- subject and citizen were convertible terms- so that wherever we see subject in the common law we can read citizen. Now I submit that this kind of language, that citizen and subject are convertible terms, in previous years, in centuries long ago, might have been language that would have flattered kings but in a Republican form of government, this is simply outrageous to speak in those terms. Madison would never have said for example that there is no difference between a monarchy and a republic. Thomas Hobbs for example might have agreed that since a monarchy is sovereign and a republic is sovereign there is no essential difference between the two forms of government. But the framers of our Constitution knew well the difference between monarchies and republics. So the idea that citizens and subjects were convertible terms is an absolute outrage and that alone should give us pause and perhaps lead us to rethink whether Wong Kim Ark should be repealed, as I think it should be repealed, that Chief Justice Fuller in that case had by far the superior argument. It was a 6 to 2 opinion but the majority opinion was so fraught with difficulties that I think it needs to be revisited. And the idea that the 14th Amendment rests upon the English common law is an outrageous misreading not only of the debates, the reconstruction debates but the Constitution itself. I think this ought not to stand.

Rosen: [00:42:47] Professor Amar if you could tell us more about the Wong Kim Ark case, why you think that it covers the children of illegal aliens, and also tell us about the Supreme Court's other relevant case law including the Rios Panetta case from 1985 which assumed in dicta that the parents of two U.S. born children were U.S. citizens, Plyler and Doe, where all nine justices agreed that no plausible distinction with respect to the Fourteenth Amendment jurisdiction can be drawn between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful. And finally on the case law tell us why you began by saying that you think that all nine justices of the current court would hold that birthright citizenship extends to the children of illegal aliens.

Amar: [00:43:31] Thanks Jeff. So let me just- I think Professor Erler realizes that he has to basically say that the Supreme Court didn't know what it was talking about in Wong Kim Ark, and he's right. Sometimes the Supreme Court gets it wrong, but not here I think. Let me just read you one payoff passage and the reason it didn't get it wrong Jeff is because Wong Kim Ark is saying the exact same thing that the New York Chancery Court said in 1844, that Lincoln's attorney general said in 1862, and that the Republican Party- it's the same Lincoln's Republican Party- are saying in Congress in 1866 unless you misread their quotes OK? Bates and the Republican Party basically it's a pretty cohesive party back then and they they have a certain view. They understand that England is different from America in a couple of respects. But when they say citizens are the same as subjects they mean for the purpose of birthright citizenship, not for everything else. Yes citizens vote in a republic and subjects you know inherit a crown. Yes in Britain you can't basically divorce the King. You can't divorce Britain even if you want; in America you can leave. Those are key differences between the American republic and the Brits; irrelevant to the question at hand which is are we going to have in effect a law of the soil like Britain or law of blood like a lot of European countries? And what the judge in 1844 says is we're going to have citizenship, not subjecthood, but citizenship, and it's renouncable by soil and that's what Bates says in 1862 and that's what the Republicans say in their statute in 1866 and in the Constitution, they're saying the same thing, not different things, Professor Erler. I don't think they're saying different things. They're saying the same thing. And that's what Wong Kim Ark says as well. They're all of a piece. And to repeat, the two differences: you can renounce your citizenship. That's what makes America great. And you're a citizen and not a subject, but it's a birthright idea with the same exceptions as the English have for ambassadors and conquering armies, and America adds one more: we've got tribes within our country or quasi sovereign nations in a way that Britain doesn't. Here's what Wong Kim Ark says: After- I could quote a lot- the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory. So you see yes they are saying we are applying the English rules to the American context. And so it just says we're gonna have a new exception for Indians. We're going to call it citizenship and not subjecthood. We're going to make it renounceable. But in this deep point about law of the soil rather than law of the blood we're affirming the- the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territories including all children here born of resident aliens with the exceptions or qualifications as of the old rule itself of citizens of foreign sovereigns or their menace children of foreign sovereigns. That would be kings or their ministers or born on foreign public ships or of enemies within and during a hostile occupation as a part of our territory. So that's what all the Blackstone references and all the rest and with the additional thing, with the single additional exception, so just like the Brits you know, there it's the subject, here it's citizen. They're not renounceable, here it is, just like the Brits with the same exceptions for foreign diplomats and concrete armoured armies with the single additional exception of children of members of Indian tribes owing direct allegiance to their several tribes. The amendment in clear words and in manifest intent includes the children born within the territory, the United States, of all other persons of whatever race or color. Every citizen or subject of another country while domiciled here is within allegiance blah blah blah. So we don't distinguish between children of aliens and children of citizens. And that was asked in the 14th Amendment debates about the Chinese, you see, so Wong Kim Ark is saying the same thing as the Republicans were saying in 1866, unless you misinterpret what they're saying which is the same thing that Bates said which was the same thing that this 1844 case said building on English authorities. So, and then the Supreme Court of the United States has repeatedly reaffirmed this later on in cases like Plyler vs. Doe as you mentioned in the modern era. And the reason I feel so- Jeff you asked me why I feel so confident about the justices- is because I did go to law school. I'm law trained and I'm in regular conversations with the justices. I'm actually having a conversation tomorrow with one of them about something. I did testify for Brett Kavanaugh. I'm a Democrat. He's a Republican. Constitutional law is not partisan. I've co-authored with- clerked for one person who's on the Supreme Court now, Steve Breyer- my co-author in a recent piece in TIME magazine/dot.com Calabresi who clerked for another Supreme Court Justice, Antonin Scalia. He's a Republican. I'm a Democrat, but I'm happy to give anyone- I'm happy to take any action you've got for me. We can place a nice big bet on this because the precedents are clear, the text is clear, the original intent is clear. The New York Times had an op ed by the pre eminent scholar of reconstruction two days ago on this topic. His name is Eric Foner. He wrote- a Columbia professor, former president of the organization of American Historians. He is by acclamation the pre-eminent scholar of reconstruction and he says this is clear. It's not ambiguous. It's clear. That's what Eric Foner says. That's what constitutional scholars who teach in law schools and are quoted by the Supreme Court, cited by the Supreme Court, followed by the justices, from Michael McConnell and Stephen Calabresi on the right to Larry Tribe and Walter Dellinger, a former solicitor general of the United States, on the left. I know of no constitutional law trained person regularly cited, in a law school, in a law school, because you know we actually- we do this thing called law day in and day out and we know we how to read cases and it's not a fair read in the case to say, because they say, you know, subjects and citizens are the same thing that they mean it for all purposes. They mean for the purpose at hand which is birthright entitlements; they don't mean it for Republicanism or for renounceability. So that's what we do. And all I'm saying is I'm about as confident about this as I've been about anything else. I have been cited 37 times by the United States Supreme Court, by justices across the spectrum, probably more by the Conservatives than by the Liberals. I I clerked for a liberal, Steve Breyer. So the precedents are clear. They're not in doubt, there are dissents but those are dissents. The text is clear. But what does it mean to be subject to the jurisdiction, it means actually you're born in the United States and if you misbehave, oh we're going to apply our laws against you. We may not even know what foreign country your parents came from, we may not even know who your parents are. You might be a foundling. You're not going to have DNA tests about who your real father is biologically or not but if, by the way, if we did, that would be a can of worms because all sorts of people aren't necessarily the biological children of the person that they think they are, of the father that they think they have. So it's a nice clean, clear rule: if you're born in the United States under the flag you're a citizen, with these two exceptions from England - conquering armies and foreign diplomats and a third one, to deal with a unique American situation which we don't have anymore which is tribal Indians. The text is clear. The original intent is clear. The history from 1844 on is clear and the precedents are clear.

Rosen: [00:52:34] Well in light of the Supreme Court decision that could lead states to legalize sports gambling, I don't know whether We the People can facilitate that. I'm not going to take that risk but I will say that at the end of this fascinating debate, it's time for closing arguments, and Professor Erler the first one is to you. In just a few sentences can you sum up for our audience why you believe that the president does have the authority by executive order to end birthright citizenship?

Erler: [00:53:02] Well I happen to be one who does not think that the president has authority to issue an executive order to end birthright citizenship. But I think he's imitating- trying to imitate President Obama who said, when Congress won't act, well I have a pen and a phone to act in their stead. But I don't think that President Obama ever acted constitutionally with his executive orders. And I don't think the president can act constitutionally here either. But I think Congress can act by statute to end birthright citizenship. And I think that they should. But I must say that Professor Amar's last argument was what Madison might call an ingenious sofism. Plenty of members of the reconstruction Congress wasted a lot of breath talking about allegiance when they talked in terms of jurisdiction. It's not enough to take up the latest edition of Black's law dictionary and look under the entry of jurisdiction to figure out what the framers of the 14th Amendment meant by jurisdiction. They said plainly what they meant by jurisdiction and it it's not what Professor Amar says they meant by jurisdiction. They meant something specific: not owing allegiance to any other country, being under the complete jurisdiction of the United States. And when Justice Gray said that the 14th Amendment adopted the way of the English common law on citizenship or subjectship, he said what no member of the reconstruction Congress ever said. I have read the debates, more than once, and there is not a single member of the Congress who ever said that we are simply adopting the English common law of subjects. We're drawing upon the ink well we're converting the English law subjects into the American law on citizenship. That was never the case and I don't think you could ever make the argument that that was the case. Justice Gray said look, Wong Kim Ark, he comes of age, if he wants to expatriate himself back to China, he is free to do so. Did he not understand that expatriation was against the English common law, that he was contradicting himself, and he contradicted himself many, many times in his opinion when he said that the 14th Amendment adopted the English common law? All we have to do is substitute citizen for subject and everything is going well. The opinion is simply absurd. It's as absurd as any opinion ever was, almost as absurd as Dred Scott. The Dred Scott opinion of course is too vicious to be merely described as absurd. But Wong Kim Ark is just as contradictory. I must say you can't simply rely on that opinion for any anything good and I disagree. The Wong Kim Ark opinion is expansive but it's not expansive enough to say that it is authoritative enough to include the children of illegal immigrants to be included as American citizens. I just do not believe that. There has been dicta, yes, but no case on point.

Rosen: [00:57:01] Thank you so much for that. Professor Amar, last word to you. Professor Erler helpfully made clear that he thinks that Congress could end birthright citizenship by statute, but the president could not do so by executive order. Tell us why you believe that in fact the Constitution compels recognition of birthright citizenship.

Amar: [00:57:19] Great so let's not lose track of that very important and helpful point that he did make: that what President Trump is proposing is flatly unconstitutional. That's actually the bottom line. Even though he and I disagree on other things and I actually think that some of this stuff is very very well settled, and, you know, it's kind of, you know, round earthers versus flat earthers, on some of this stuff. That's actually my view. And there are lots of things that are fairly debatable among constitutional scholars and judges, but this actually in general isn't that close. But even for that, ok, we are agreed that what President Trump is proposing, Professor Erler and I are in agreement that that's flatly unconstitutional at present, can't do this unilaterally. Good. Thank you for that. Very important. A note of agreement. Two final points: If you say subject to the jurisdiction, a kid of an illegal alien is possibly subject to the jurisdiction of some other country that he's never been to, never will be to, maybe. OK. But then that would be true of a legal alien too, not just an illegal alien. So if the test is somehow, is there any other country that could possibly regulate, are you born a dual citizen or something? And that makes you now not an American citizen, because let's imagine your parents are legal aliens. Let's imagine actually that they're permanent green- residents, they're green card holders. But you are on the day you're born not just born an American under the 14th Amendment but you also might inherit a dual citizenship from Canada or England or some other jurisdiction. So if he says are subject to jurisdiction means you can't- there has to be no other foreign government possibly in the picture. Wow. That's a radical proposition. That's true not just of children of illegal aliens, the children of legal aliens, not just people on student visas, not just people who are tourists, but actually permanent green card holders even. Wow wow wow. And now you see the clear contradiction between that and Wong Kim Ark on its facts. And he says oh the Supreme Court, they don't know what they're doing. He's right. Sometimes they don't. But I'm not sure that it's- that his- that Pandora's Box once you open it can be limited just to children of illegal aliens and it's a thin edge of a very big and dangerous wedge that I think runs squarely into Wong Kim Ark. And the third point, my final point is there is no- I've read the debates about the 14th Amendment too. I've written a bunch of books actually on the 14th Amendment and not just this one sentence, and I emphatically disagree with his account of actually what they say and don't say. And oh by the way Eric Foner is on my side. I'd rather have him than any other single person. And I actually think virtually all the reconstruction historians whom I know, and I know a lot of them, you know, would be on my side. Here's the point. Their conversation doesn't begin in 1866. They are building on what Bates has done in 1862, in their statutes in 1866 and their amendment, and Bates is building on an 1844 case that he explicitly references that is based on English rules of soil. So all this stuff about English rules of soil. You might not like it Professor Erler. You might think it collapses you know subjectship and citizenship, but on the relevant question actually which is not subjecthood versus citizenship, and it's not whether you can renounce your birthright or not, but on the question basically are we in America going to be a law of the soil place or law of the blood place? 1844 says we're a law of the soil place. 1862 Bates says we're a law of the soil place. That's what the framers of the 14th Amendment actually say again and again and again, even for children of Chinese people who themselves can't be citizens but the children if born in America can. And there are only three exceptions and two of them come from English law, all the way back in Blackstone: conquering armies and foreign diplomats and we add a third for American Indians in tribes because this is a different regime.

Rosen: [01:01:45] Thank you so much Akhil Amar and Edward Erler for an extremely vigorous but also extremely deep, specific and illuminating debate about this hotly contested constitutional topic. Dear We the People listeners you have been treated to what is indeed a deep dive into this important case and your homework is to take one of these statutes or cases that was discussed, read it and see if you agree with Professor Amar or Professor Erler and write to me to tell me what you think. Akhil Amar Edward Erler thank you so much for joining.

Amar: [01:02:21] Thank you.

Erler: [01:02:22] My pleasure.

Rosen: [01:02:27] Today's show was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please listen and subscribe to our companion podcast Live at America's Town Hall. This is the audio feed of all of our phenomenal shows and public programs both in Philadelphia and around the country. They include scholars and thought leaders from Michael Beschloss and Doris Kearns Goodwin to Kenneth Starr whom I'm interviewing tonight, and they're just a wonderful companion to We the People for those of you who are hungry for constitutional education. And of course if you like our podcast tell your friends and colleagues and leave us a rating on Apple or wherever else you get your podcasts. As always dear We The People listeners please remember the National Constitution Center is a private nonprofit. We can't put on these podcasts or do any of the really important educational work we do unless you, the people that is We the People who love our podcast, become members and support us and sign up and tell your friends and tell their friends and continue to write to me to tell you what you think of the podcast. Your engagement is so meaningful and I'm so honored that you are learning with me about the Constitution every week and I want you to show that passion and commitment by joining the National Constitution Center at our website. Please go to ConstitutionCenter.org to learn more. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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