The Citizenship Clause of the 14th Amendment, which was ratified in 1868, states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Why discuss this black letter law? It is due to the controversy brought to us courtesy of Donald Trump. He has attempted to banish people born here in these United States to parents who lacked citizenship. In the view of the Trump administration, the phrase “subject to the jurisdiction thereof” does not include progeny born to people in the country unlawfully or temporarily.
This clause has been reasonably interpreted so as to exclude from citizenship babies born to foreign ambassadors, since they are clearly—well, as clearly as anything else in this murky corner of the law—subject to foreign, not domestic, law. (However, if they were to commit a murder in daylight with dozens of witnesses, one might have reason to doubt this, not de jure, but possibly de facto). Also excluded would be enemy soldiers captured by the U.S. military and brought to our shores. The Indian Citizenship Act of 1924 rectified an injustice prevailing before that date, which did not confer this status upon Native persons.
But what about illegal immigrants? The Trump administration is now trying to change the past procedure which would automatically grant such status to children originating from that source. So far, several lower courts have insisted upon a continuation of this practice, thus spurning this Trump initiative.
At first glance, Trump is correct. After all, strictly speaking — and how else should we speak about such an important legal issue as this? — illegal immigrants are criminals, plain and simple. They have broken the law of the land (we are not now discussing what the law should be, just what it most patently is). Illegal immigrants are lawbreakers and trespassers who should be, if our law is to be followed, evicted from our country and kept in prison until that occurs.
What about those individuals who would be unjustly killed were they to be returned against their will to their country of origin? U.S. law takes into account such circumstances and either deports them to a third nation in which they would be safe or makes an exception to this principle and allows them to remain on humanitarian grounds. In those cases, their children would become citizens.
The only difficulty with the foregoing is the case of Black people. Some were brought to the country legally as slaves, and when they were freed by law in 1865, elemental justice required that they and their progeny become citizens. This, indeed, occurred.
However, there were some Black people who arrived here, also in chains, but illegally. Slavery was still legal in this country, but the importation of such people was prohibited by law in 1808. Are they to be treated as criminals, enemy soldiers, or ambassadors from foreign lands and sent back to the home country from which they were seized? Yes, if they were considered to be members of this criminal category. But to do so is legally and morally preposterous. They were not criminals under any law that a civilized society should recognize. Rather, they were innocent victims, not purposeful actors, when they arrived here. They are starkly to be distinguished from modern-day illegal immigrants, who landed here of their own free will and are thus guilty of purposefully violating our laws.
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Walter E. Block is Harold E. Wirth Endowed Chair and professor of economics at Loyola University New Orleans.
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