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Monday, May 28, 2018
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Tom Jackson Columns

Rethinking birthright citizenship

It seems, at least at this early stage, we are embarking on a presidential election campaign about Truly Important Things, things in some ways no less vital to the nation’s future than the issues that dominated the election of 1860.

Now, as then, we are discussing what it means to be an American. And beyond that, who is qualified to be part of the conversation.

To think — concede, rather — that we have legal scholar, historian and billionaire reality show host Donald Trump to thank for cracking open this Sam’s Club-size can of divisiveness is to confirm what Joaquin Andujar, the storied big-league pitcher/philosopher, said way back when:

“There is one word in America that says it all, and that one word is, ‘Youneverknow.’ ”

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What we’re talking about is that suddenly hot topic, birthright citizenship, and how a proper interpretation of the Reconstruction Era 14th Amendment — as opposed to the one foisted on us, almost in afterthought, through a 1982 Supreme Court decision — is fundamental to any workable, lasting fix for our messed-up immigration situation.

Here’s where things went goofy: In 1982, Justice William Brennan sneaked a mischievous footnote into his opinion in a case involving school funding for illegal immigrant students, asserting “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

“Other than the part about one being lawful and the other not,” as Long Island, New York-based Independent Sentinel blogger Sara Noble wryly notes.

Designed to guarantee the rights of freed black slaves — and only freed black slaves — the 14th Amendment grants citizenship to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

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The cause of much stumbling is the second qualifier: “subject to the jurisdiction.” This doesn’t mean simply being governed by the laws of the United States, which describes everyone — even diplomats, to a degree — who are within the nation’s borders. Instead, legal experts on the right and left make plain that when the 14th Amendment was drafted, “jurisdiction” meant, as former federal prosecutor Andy McCarthy explains, “the complete allegiance inherent in citizenship.”

Alas, subsequent Supreme Court rulings following hard on the heels of the Brennan discovery took the course you would expect, and the next thing we knew the allegiance portion of the 14th — the part carefully crafted by Congress and amended from time to time by the same — was reduced to meaninglessness.

But the phrase isn’t meaningless, nor should it be, as political science professor and Claremont Institute senior fellow Edward J. Erler declares: “Today, we somehow have come to believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction; but this renders the jurisdiction clause utterly superfluous. If this had been the intention of the framers of the Fourteenth Amendment, presumably they would have said simply that all persons born or naturalized in the U.S. are thereby citizens.”

They didn’t because that wasn’t their intention, and we are vexed today for having cast aside their wisdom. As Trump says, clearer than most, extending citizenship to U.S.-born babies regardless of the mother’s legal status “remains the biggest magnet for illegal immigration.”

If only all Republican presidential candidates would speak as plainly about this perverse incentive and its simple legislative remedy — the Constitution gives Congress charge over deciding citizenship, not the courts — instead of playing political pingpong. We’re looking at you, Jeb Bush.

This hardly means rounding up and shipping off to unfamiliar places children who were born and grew up here. A simpler, better idea would be to include a grandfather provision in the statute that ends or amends birthright citizenship. Born to an illegal immigrant mom before a certain date, you’re a citizen; born after that date, you’re not.

That’s not saying setting things right will be easy. But that’s OK. The hashing out of Truly Important Things rarely is.

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