Plain Meaning

If Trump were right about birthright citizenship, some lawmakers would have been bounced

When federal prosecutors first defended President Trump’s order denying birthright citizenship to undocumented immigrants, the judge was not impressed.

“I have difficulty understanding how a member of the bar can state unequivocally that this is a constitutional order. It boggles my mind,” said U.S. District Judge John Coughenour, who was appointed by President Reagan. “Where were the lawyers when this decision was being made?”

Good question. Several other judges were similarly flabbergasted, and like Coughenour, blocked the president’s order. That’s because the Constitution’s 14^th Amendment says anyone born in the United States and subject to its jurisdiction – meaning essentially its laws – is a citizen. The language clearly excludes the children of, say, foreign diplomats, but just as clearly covers the kids of immigrants here temporarily or without proper papers. Those kids, the judges pointed out, must obviously comply with U.S. law. They are citizens.

Yet the prosecutors plow on. The U.S. Supreme Court agreed earlier this month to hear their case, and without, you know, actual law to rely on, the lawyers support their view with legislative history, statements from members of Congress who debated the 14^th Amendment in 1866. The problem is that textualists – people who, like the current conservative justices, profess to interpret laws based on their text alone – pooh pooh legislative history. As the right’s patron saint, Antonin Scalia, put it, “We are governed by laws, not by the intentions of legislators.”

With the approach of quoting what a few dead senators said about the law unlikely to fly at the top court, foes of birthright citizenship might consider another tack. Here’s one.

It’s based on the qualifications for becoming a member of Congress. They require you to be at least a certain age, live in the state you represent – and be a U.S. citizen. Whether you meet these qualifications is totally up to the Senate or House, as the case may be, and history is full of accusations that people have fallen short – the qualifications of more than 600 members of Congress have been challenged over the years. And they were never challenged more often than during Reconstruction – right when the 14^thAmendment was adopted.

Here’s where it gets interesting. According to Trump’s executive order, the amendment “has always excluded from birthright citizenship” children born in the United States to unauthorized immigrants or lawful, temporary immigrants. According to new research from Amanda Frost and Emily Eason at the University of Virginia, under that definition, more than a dozen senators and representatives who served between 1865 and 1871 may not have qualified as U.S. citizens – and yet none of them was ever challenged on that basis or had his immigration status questioned, even during perhaps the most dangerously partisan era of our history.

Here are some details. To prove citizenship, the Trump order would require anyone born in the United States of immigrant parents to provide “acceptable evidence” that at least one of those parents was living in the United States legally and permanently – “domiciled” here – “at the time of said person’s birth.” Frost and Eason found eleven members of Congress who were American-born children of immigrants. Four of the eleven were born only a couple of years after their parents arrived, casting doubt on whether the parents were domiciled here at that time. What’s more, for over a dozen other members, there are no records of where their parents were born, or in some cases who their parents were, meaning they may have been here illegally and with no intention of staying when their little legislator was born.

Congressman Samuel Scott Marshall, for example, served seven terms, was a candidate for Speaker of the House in 1867, and engaged in plenty of partisan fights. Yet he was born less than two years after his parents arrived from Ireland, and they expressed no desire at the time to remain here. William Farrand Prosser, another contentious character who virulently opposed Chinese immigration, spent two terms in the House, and his Irish parents welcomed him into the world less than three years after arriving. They also gave no signs of planning to stick around.

If Trump’s definition of citizen were commonly accepted in 1866, these or any of the other dozen or so senators and representatives with suspect immigration status would have surely been grilled about their qualifications to serve, and maybe bounced from Congress. Yet that didn’t happened, which is not bad evidence that, as with so many things, Trump and his minions are just making it up.

Conclusive? Not even close. And it won’t change the minds of birthright citizenship’s critics. It’s just another reason to be pretty sure that the 14^th Amendment means what it says – and that the Supreme Court will agree. If it doesn’t, well, that would really boggle the mind.