Trump is catching flack for his interpretation of the 14th Amendment.
He argues that it does not automatically grant citizenship to every single person born in the U.S. And, regardless of personal sentiment, he is actually right, but how that is interpreted can be debated.
The phrase he is referencing should not be ignored: “subject to the jurisdiction thereof”. He has been saying that this phrase excludes children of illegal immigrants or temporary visitors [people travelling in the U.S. who have their baby here while travelling here]. These two groups are the ones he says should not be granted citizenship. And he has a legal basis for it, depending on interpretation.
Of late, he has also said that this [14th] amendment was originally meant to protect former enslaved people. He is right on that; the whole purpose of the 14th amendment was to overturn the ⅗ compromise: counting a slave as only ⅗ of a person to establish representation in the states, and denying them citizenship at the same time. He is asserting this does not apply to people who entered our country from another country illegally, not following the law to get here.
He’s been ‘having this conversation’ for some time, but it has become a hot topic because the Supreme Court is hearing a case on one of his executive orders that rests on this premise. That order would deny citizenship to babies born in the U.S. unless at least one parent is already a citizen of the United States [before the baby is born], or holds a legal green card. Lower courts have blocked this policy based on their interpretation of the 14th Amendment.
There is controversy, because of a S.C. case in 1898, U.S. v Wong Kim Ark. That opinion was that if you were born on U.S. soil, you are a citizen, based on that court’s interpretation of the 14th Amendment. Proponents of absolute birthright citizenship regardless of circumstances argue that if Trump’s order stands, there would be many people who were born here who would not be a citizen, and that it would affect hundreds of thousands of births every year. [In my opinion, that is not ‘legal argument’, that is sentiment and opinion that should not color the law].
Supporters of Trump argue that the constitution has been misinterpreted for decades. The fact that a legal interpretation has existed for a long time does not make it correct. The Supreme Court has reversed its own decisions many times throughout history when it concluded that earlier rulings were wrongly decided. A well-known example is Dred Scott v. Sandford, which was later repudiated in law and constitutional amendment. This demonstrates a basic principle: judicial precedent carries weight, but it is not infallible, and it can be corrected when it is found to be inconsistent with the Constitution. So, the fact that Trump is questioning interpretation does not necessarily make him a villain or a despot.
Trump’s position is controversial, because it is saying that citizenship should depend not on geography of birth alone, but on legal “allegiance and status” of parents. He is aggressive and blunt about criticizing courts and judges on how they handle these cases, and about his belief that we should correct a wrong interpretation of the Constitution. It is no longer just talk, but a direct effort on his part to reshape the interpretation of Amendment 14, and the Supreme Court is about to weigh in on the argument. That is why this is a hotbed issue right now.
It might warrant taking a look at the actual meaning of the “subject to the jurisdiction” phrase. These issues, to me, are exacerbated because of people’s methods of interpretation. Many, if not most, use a very broad ‘means to an end’ method of reasoning to interpret the constitution, and this is where the ‘elastic clause’ in the Constitution got its origin. Personally, I do not like that method. And neither did the actual writers of the constitution.
Since Alexander Hamilton, people ‘stretch’ the meaning of words to bend the Constitution to their will. Thomas Jefferson, however, famously said, “On every question of construction, let us carry ourselves back to the time when the Constitution was adopted…”. Madison, the arguable genius behind the Constitution, said, “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal… until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” This means that these laws have to be measured in the public eye and in the courtroom. That’s exactly what is happening now.
What the phrase “subject to the jurisdiction thereof” means first has to be measured on the surface of what it actually says: “Born in the United States and subject to the jurisdiction of the United States”. That is what the amendment actually says.
So, on the surface, there seems to be two parts to answering who gets birthright citizenship: born here, and under our legal purview.
Does being born here, and that alone, automatically mean you are ‘under jurisdiction’? What does ‘jurisdiction’ mean? Allegiance? Loyalty?
In 1868, when the 14th Amendment was penned, it did not mean only ‘you are standing on American soil.’ It meant that the U.S. had full and sole legal authority over the person; it meant the person gave political allegiance and loyalty to the U.S., and were not subject to another sovereign power. It also was understood to exclude certain people born here: children of foreign diplomats, children of enemy occupiers, precisely because those people were not subject to U.S. authority by their own WILL and expression.
Based on the 1868 interpretation, Trump is arguing that birth alone on our soil does not warrant citizenship. He’s asserting that it means ‘full political allegiance,’ which language is supported by earlier commentary on the law. He asserts that illegal immigrants owe their allegiance elsewhere [which many have seen evidence of], temporary visitors owe allegiance to someone else, and thus children of these two groups born here do not gain citizenship. It seems to me he’s saying that if they had sought to get here under a green card or through legal means and pursuing naturalization, there is no problem. What is interesting to me, from a Biblical perspective, which some few people try to argue but do so saying Trump’s view is not compassionate and thus ‘unchristian’, the argument turns into ‘covenantal language’.
A constitution, in a sense, is a covenant, a contractual agreement between the citizens and its potential government. In the Bible, the Torah was the expression of a covenant between God and His people. Jurisdiction in Torah, covenantal terms looks like “who is under the authority of the king?”
In ancient Israel, being physically in the land of Israel, by God’s own Word, did not grant someone ‘citizenship’ under the covenant. You had to take steps, as a foreigner, in order to enter into the covenant, if you wanted the King of Israel to be your sovereign. You had to be included in the Covenant of Israel by submitting to Israel’s law, The Torah, and giving allegiance to Israel and Israel’s God: YHWH, and the King appointed by God.
Israel, the nation/people, left Egypt with a ‘mixed multitude’; those Gentiles had to join in covenant to God and His people in order to enjoy full citizenship; it wasn’t automatic, just because they were present with them. If they did not, they were called, Biblically, a “Ger Toshav”, a ‘resident stranger’. They had rights under that status, but those rights were limited in scope, compared to ‘citizens’ who were in covenant with Israel. So, Biblically, there is a precedent for establishing citizenship on a basis other than ‘presence’ alone.
So the question is, what makes a person ‘belong’ to the United States, and to enjoy the protection of our law?, which is what ‘subject to the jurisdiction thereof’ actually means.
Some say geography of birth alone. Some say allegiance and legal attachment, and the Bible goes so far as to demand covenant and submission to God.
If Trump gets his way, birthright citizenship is not eliminated. It becomes much more limited, but it does not do away with it. We would no longer identify citizenship through a geographic identity system, but through a loyalty and expression of submission to U.S. Sovereignty. That is a paradigm shift, redefining citizenship and what makes up a nation.
Under the current U.S. model, there is no match to Biblical principle. “If you’re born on the land, you’re an Israeli”. No, in the Bible, if you were not born into the Hebrew family, you had to submit to its laws and join in covenantal promise of loyalty and fidelity. This may be what Trump is asserting: “Only those under ‘covenant authority’ count as Americans”. That, for me, is what is rubbing people’s rhubarb, but I quite like the notion, myself. And it is not despotism. It is a return, I believe, to “the time when the Constitution was adopted…”, which, for the 14th amendment, was 1868, when this was actually the interpretation.
This is a question of what defines the people of America. I think that is a very important question, and people should discuss it, but not when engulfed in emotion and swirling in inebriation over disliking someone’s personality, but looking at the conversation from a clear perspective.
I will close by saying I am not a ‘MAGA’ person who agrees with Trump automatically, nor do I swoon over him. There are things I dislike about him, and things over which I disagree with him; but, I happen to think he is right on this issue, even if his communication of his position is horrible.