Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.
Statements by several Republican candidates over the last week suggest that a refresher course on the Constitution is in order. Over the weekend Ben Carson said in an interview with NBC’s Meet the Press: "I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that." He suggested doing so would violate the values and principles of America, but apparently not the Constitutional provision of Article VI, which declares "no religious test shall ever be required as a qualification to any office or public trust under the United States."
So, too, a number of candidates, most notably Donald Trump, continue to raise the issue of birthright citizenship. Trump did so in the debate suggesting that the 14th Amendment means something other than its plain language says, namely that, "all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the states wherein they reside." I am well aware that some scholars argue otherwise, hanging their hope on the thin reed of the phrase "subject to the jurisdiction." The courts have consistently held that persons born here are citizens by birth. The arguments on the phrase in question were litigated and settle in the Wong Kim Ark case in 1898. The debates during consideration of the Amendment are as definitive as one could hope, making clear that the exceptions to birthright citizenship were limited to the families of diplomats and those of an occupying enemy (American Indians were also excluded because they were considered citizens of sovereign nations established by treaty).
The Supreme Court as recently as the 2004 Hamdi v. Rumsfield case chose to accept citizenship defined by birthright, with even Antonin Scalia in dissent on the main issue before the court, acknowledging that Yaser Hamdi, who was born on U.S. soil to Yemeni parents who returned to their native country when he was an infant, was a "presumptive citizen."
Birthright citizenship didn't begin with the 14th Amendment; it was a part of English Common Law that was practiced here even after the United States gained its independence. Naturalization ceremonies never took place for the children of immigrants, they became Americans by virtue of being born here--one reason why American assimilation worked so well. And, by the way, Trump is wrong that we're nearly alone in offering birthright citizenship. While the practice is a minority one, not so in the Western Hemisphere, where—sorry, Donald—most countries, including Mexico, have some form of birthright citizenship.
Those candidates who claim to be constitutionalists could benefit from re-reading the document.
