Citizenship’s Penumbras

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

What in the world was the Editor of the Sun thinking? That seems to be the sentiment of our readers in the wake of the editor’s column on the 14th Amendment. The column suggested that President Trump was making a blunder with his vow to end birthright citizenship and would compound the error by trying to do so with an executive order. Just look at the trouble President Obama got into, etc. etc.

No sooner had the Editor penned that screed than he decamped to his club to, no doubt, canoodle with his loyal editorial assistant, Gin Martini. He probably won’t surface until after Halloween. His only instructions to those who pull the oars in the editorial galley were to try to come up with something grammatical before evening. Luckily he won’t be around to edit it.

We say “luckily” because there are two sides to this story. The editor’s high-minded notions of the free movement of labor notwithstanding, it’s hard to imagine that the authors of the birthright citizenship clause of the 14th Amendment intended anything like the situation that obtains today, where Congress finds its uniform rules on immigration being ignored by millions.

The constitutional case, moreover, is not so clear. Our Editor himself thought that this was well-put in the New York Post by the author of a column that argued the other side of the question. That was constitutional law professor John Eastman. He parses the birthright clause, which defines citizens as “all persons born or naturalized in the United States and subject to the jurisdiction thereof.”

The jurisdiction question is key. Professor Chapman quotes a famed speech by one of the authors of the citizenship clause, Senator Jacob Howard, as suggesting in 1868 that the language should be construed as that which “applies to every citizen of the United States now.” He was referring to the 1866 Civil Rights Act, passed two years before the 14th Amendment.

That act defined citizens as all persons “born in the United States, and not subject to any foreign power.” Howard argued that the 14th amendment would “not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of person.”

No doubt being alerted to this kind of background is what President Trump reckons might allow an executive order to block birthright as it is being sought in so many cases today. We’re not entirely sure this is a loser’s game. Surely Mr. Trump would be challenged in court. Precedent is against him. Yet parsing language and the record left by the authors of our national parchment is precisely the part of our judges.

In court, there’s no telling what might happen. The right to birth control was discovered in the shadows and penumbras of, among other places, the Third Amendment, which says troops mayn’t be quartered in a private home in time of peace. We cite the persnickety penumbras merely to suggest that that nothing should be taken for granted. Why, though it’s never heretofore happened, even our Editor could change his mind.


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