The whole country has been debating the Trump’s latest announcement to repeal the 14th Amendment’s birthright citizenship announcement. It came first through an interview with Axios.
Trump declares he can end birthright citizenship with an executive order: "It was always told to me that you needed a constitutional amendment. Guess what? You don't." pic.twitter.com/CAK07Kt11D
— Axios (@axios) October 30, 2018
And then from one of his infamous tweets.
So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words “subject to the jurisdiction thereof.” Many legal scholars agree…..
— Donald J. Trump (@realDonaldTrump) October 31, 2018
Everybody has an opinion on the case, from the dude who bagged my groceries this morning to my one of my relatives whose expertise is one semester of community college (and not one class in politics or civics). No matter where you go, everybody is trying to talk about it, but no one seems to be sure about the answer to the central question…
Can he do it?
So, BGN sat down with Corey Brettschneider, Constitutional Law professor at Brown University and author of the book The Oath and the Office. Brettschneider not only answered our question, he left a message to BGN readers on why this issue is so important to Trump.
On the direct answer to the question: Can he end birthright citizenship?
No.
That’s a quick answer. I think it’s … I’ve been using the term wacky to describe it. It’s not that there’s no argument, but it’s not, to me, plausible on any mainstream view of constitutional interpretation. And, there are some issues in constitutional interpretation where there’s a real debate.
Based on approaches and methods of interpretation, and there is a genuine divide about [how to interpret the Constitution]. But on this one, I think there’s agreement across the spectrum that he can’t do it. I mean the point of the clause is to have a very clear rule, which is that if you’re born here, then you’re a citizen. And the only exception, really, are supposed to be people who have diplomatic immunity, so they’re not subject, for instance, to the criminal law in a way that most other people are.
But [Trump’s] argument rests on the idea that this sort of language, about not being “subject to the jurisdiction” isn’t just about diplomats, but that it’s about people who kind of lack loyalty to the United States,
And so, for me, where I just start [explaining] is the plain meaning of the text, I don’t really see how “subject to the jurisdiction” could mean that.
On Trump’s claims that the undocumented are not covered by the Constitution
If you are undocumented, you still have to obey the criminal law and can be punished if you don’t. So, I think basically [Trump’s claim] is a really fringe view. There are three … at least three scholars, I guess, (the main one, based out of an institute in Claremont,) and they’ve been pushing this view and Trump is sort of using it. I think the text is clear. The principle, too, of the amendment is all about that idea that at birth, we’re all equals. And so, we’re not supposed to have an aristocracy or [elites], that’s the whole idea of why the … partly why the Civil War was fought, and why the amendment was passed.
On the real reason Trump started this debate
And so, it’s not just the text, it’s also the principle that the proposal runs headway into. So that’s sort of the main gist of why he can’t do it. But, I guess part of this story is that he is attracted, Trump, to proposals that will not only energize his base, but that really fly in the face of the Constitution.
A big reason why I wrote the book is that during the campaign was [Trump’s] proposals. His proposals to torture the families of suspected terrorists, the threat to shut down the libel laws, the proposal [for] a complete shutdown of Muslim immigration into the United States. All those things flew in the face to me, in obvious ways, of the Constitution.
And the irony, or the kind of tragedy of all this is that the oath, the position [the President] was supposed to be running for is the point of the book. Calling it The Oath and the Office was [because] the role of the President is to preserve, protect, and defend to Constitution. Here was somebody whose whole campaign [in 2016] was really against the Constitution.
And so, unfortunately, this is just one example of this wider trend, where [Trump] is attracted to the opposite of what the job is supposed to be.
Brettscheider says his book is designed to be a tool to educate voters about the Constitution. You can pick up a copy wherever books are sold.
It’s almost like the man isn’t interested in the job at all, doesn’t it? You can read more about the Constitution in Brettschneider’s book, The Oath and the Office and get more information on his website. He says that one of the ways we stop Trump is to push back on these issues and educate ourselves. I highly recommend his book as a start. You can also look up the original documents for the following cases to help understand the importance of birthright citizenship.
Tell us in the comments what you learned.
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