Correcting Bill O’Reilly (Again!) on “Birthright” Citizenship and the Constitution

To support his insane interpretation of the post-Civil War amendments as granting citizenship to the kids of illegal aliens, Fox News’ Bill O’Reilly is now taking job applications for the nonexistent–but dearly hoped-for–Jeb! administration, live, during his show.

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Last Thursday’s job applicants were longtime government lawyers John Yoo and David Rivkin.

In response to O’Reilly’s statement that “there is no question the Supreme Court decisions have upheld that portion of the 14th Amendment that says any person, any person born in the U.S.A. is entitled to citizenship . . . for 150 years”–Yoo concurred, claiming: “This has been the rule in American history since the founding of the republic.”

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If one were being a stickler, one might recall the two centuries during which the children of slaves were not deemed citizens despite being born here–in fact, despite their parents, their grandparents and their great-grandparents being born here.

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Incongruously, Yoo also said, “The text of the 14th Amendment is clear” about kids born to illegals being citizens.

Wait a minute! Why did we need an amendment if that was already the law–since “the founding of the republic”!

An impartial observer might contest whether the amendment is “clear” on that. “Clear” would be: All persons born in the United States are citizens.

What the amendment actually says is: “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.”

The framers of the 14th Amendment weren’t putting a secret trap door in the Constitution for fun. The “jurisdiction thereof” and “state wherein they reside” language means something. (Ironically, Yoo–author of the Gitmo torture memo–was demonstrating that if you torture the words of the Constitution, you can get them to say anything.)

At least Rivkin didn’t go back to “the founding of the republic.” But he, too, claimed that the “original public meaning (of the 14th Amendment] which matters for those of us who are conservatives is clear”: to grant citizenship to any kid whose illegal alien mother managed to evade Border Patrol agents.

Whomever that was the “original public meaning” for, it sure wasn’t the Supreme Court.

To the contrary, the cases in the first few decades following the adoption of the 14th Amendment leave the strong impression that it had something to do with freed slaves, and freed slaves alone:

— Supreme Court opinion in the Slaughterhouse cases (1873):

“(N)o one can fail to be impressed with the one pervading purpose found in (the 13th, 14th and 15th Amendments), lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”

— Supreme Court opinion in Ex Parte Virginia (1879):

“[The 14th Amendment was] primarily designed to give freedom to persons of the African race, prevent their future enslavement, make them citizens, prevent discriminating State legislation against their rights as freemen, and secure to them the ballot.”

— Supreme Court opinion in Strauder v. West Virginia (1880):

“The 14th Amendment was framed and adopted . . . to assure to the colored race the enjoyment of all the civil rights that, under the law, are enjoyed by white persons, and to give to that race the protection of the general government in that enjoyment whenever it should be denied by the States.”

— Supreme Court opinion in Neal v. Delaware (1880) (majority opinion written by Justice John Marshall Harlan, who was the only dissenting vote in Plessy v. Ferguson):

“The right secured to the colored man under the 14th Amendment and the civil rights laws is that he shall not be discriminated against solely on account of his race or color.”

— Supreme Court opinion in Elk v. Wilkins (1884):

“The main object of the opening sentence of the 14th Amendment was . . . to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States . . . The evident meaning of (the words, “and subject to the jurisdiction thereof”) is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. . . . Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterward, except by being naturalized . . .”

One has to leap forward 200 years from “the founding of the republic” to find the first claim that kids born to illegal immigrants are citizens: To wit, in dicta (irrelevant chitchat) by Justice William Brennan, slipped into the footnote of a 5-4 decision in 1982.

So to be precise, what Yoo means by the “founding of the republic,” and Rivkin means by “the original public meaning” of the 14th Amendment, is: “Brennan dicta from a 1982 opinion.”

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