Should Donald Trump issue an executive order purporting to strip millions of children of immigrants of their American citizenship? The obvious answer might seem to be no, and that no serious person would entertain such a profoundly racist assault on the Constitution. Yet this exact proposal appeared on Wednesday in the Washington Post, in the form of an op-ed by Michael Anton. The piece is both malicious and mendacious, a xenophobic cri de coeur that rests on lazy, easily refuted lies. It would barely meet Breitbart’s editorial standards, and its publication in the Post can only help to legitimize a constitutional conspiracy theory designed to denaturalize nonwhite American citizens.
The first red flag in Wednesday’s op-ed is its byline. Anton, the author, briefly served on Trump’s National Security Council, a position he obtained by peddling a pseudo-intellectual brand of nativism. He has opined that the “ceaseless importation of Third World foreigners” (that is, nonwhites) has made the electorate “less Republican, less republican, and less traditionally American with every cycle.” And, most notably, he has maligned the children of immigrants as “ringers to form a permanent electoral majority” that will eventually destroy the country.
It is from this vantage point that Anton declares his support for ending birthright citizenship—the extension of American citizenship to virtually every individual born on U.S. soil. Anton describes this practice as “an absurdity—historically, constitutionally, philosophically and practically,” and suggests it is not, in fact, rooted in the Constitution. This claim might appear dubious; after all, Congress passed the 14th Amendment to extend birthright citizenship to blacks, overturning the Supreme Court’s Dred Scott decision. That amendment’s first sentence is unambiguous: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Since 1898, the Supreme Court has found that this guarantee means what it says, compelling the government to grant citizenship to children born in the U.S., regardless of their parents’ immigration status.
But Anton provides an alternate theory. He asserts that five words in that opening sentence of the 14th Amendment—“subject to the jurisdiction thereof”—have a secret meaning: They were meant to differentiate between “freed slaves” and “the children of immigrants who came here illegally.” That’s because, he alleges, an individual may only be “subject to the jurisdiction” of the United States if she has no allegiance to any other country.
As Garrett Epps, a law professor at the University of Baltimore and a writer for the Atlantic, explained in his watershed 2010 law-review article on the topic, the words subject to the jurisdiction thereof do have a specific meaning, and it isn’t the one Anton ascribes to them. Rather, these words indicate the Congress’ desire to exclude two key groups from birthright citizenship: Native Americans who lived under tribal governments or on the frontier, and the children of diplomats. Congress carved out these groups because, then and now, the federal government had limited authority to enforce U.S. laws against them. Diplomats and their children had immunity under international law; American Indian tribes were governed by treaties and treated as separate sovereigns. Every other individual born in the U.S.—to citizens and foreigners alike—is “subject to the jurisdiction” of the federal government.
Over and over again during floor debate, the drafters and supporters of the 14th Amendment explained that they intended these two groups—and only these groups—to be excluded from birthright citizenship. Yet Anton warps a key quote to suggest otherwise. He writes that Sen. Jacob Howard, a sponsor of the amendment, “clarified that the amendment explicitly excludes from citizenship ‘persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.’ ”
That is a lie. Here is what Howard actually said:
This [citizenship guarantee] will 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 persons.
(Later, Howard added that “an Indian belonging to a tribe” would also be excluded.)
See the distinction? By adding the word or, Anton creates the false impression that Howard spoke of three different groups—“foreigners,” “aliens,” and the children of ambassadors. But in reality, Howard described a single group: the children of ambassadors, whom he characterized (correctly) as “foreigners” and “aliens.” Howard did not intend to exclude all children of foreigners from citizenship. He merely noted that, under long-standing international custom, the offspring of diplomats abroad do not receive the citizenship of their host country. (That remains true today.)
The Post should have detected Anton’s sleight of hand, and still owes its readers a correction. His duplicitous alteration is the equivalent of misquoting the First Amendment to read that “Congress shall make [any] law abridging the freedom of speech.” Remove this false quotation, and Anton has no historical support for his argument. Esteemed legal commentators, from James Ho on the right (now a federal appeals court judge) to Elizabeth Wydra on the left (now the president of the influential Constitutional Accountability Center), debunked this botched reading of the congressional record years ago. (Wydra calls it “the ‘allegiance’ red herring.”) A quick Google search by the Post’s fact-checkers could’ve thwarted this glaring error.
At the end of his op-ed, Anton urges Trump to issue an executive order to “specify to federal agencies that the children of noncitizens are not citizens.” This move would immediately expatriate millions of Americans—not just those born to undocumented immigrants, but all children of noncitizen immigrants. More than 18 million Americans’ citizenship would be at stake. With the stroke of a pen, Trump would create an underclass of Americans denied the benefits and privileges of citizenship that they had heretofore enjoyed.
And why? Anton writes that when the children of immigrants become Americans at birth, “our laws [are] flouted and our citizenship debased.” To accept this conclusion, one must agree that giving citizenship to immigrant children—the majority of whom are nonwhite—somehow “debase[s]” America’s body politic. And why would that be? Why are first-generation Americans inherently detrimental to the country? Because nonwhite citizens are inferior to white ones? It is difficult to draw any other conclusion.
From top to bottom, Anton’s op-ed is disingenuous and flat-out wrong, rooted in white nationalism rather than constitutional interpretation. Its publication is a shameful moment for the Washington Post. It’s also a useful reminder that, 150 years after it entered our Constitution, birthright citizenship is still under attack. Regardless of what drivel the Post publishes, a child born in the United States is still an American citizen. And esteemed outlets should refuse to aid a racist rewriting of the 14th Amendment’s bedrock guarantee.
One more thing
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