The Birthright Citizenship Debate

In this episode of Roots, Rights & Reason, Lee Smith welcomes renowned legal scholar Richard A. Epstein for a timely and thought-provoking examination of birthright citizenship and the original meaning of the 14th Amendment. Drawing on decades of scholarship in constitutional and Roman law, Epstein challenges widely accepted interpretations and argues that modern legal frameworks have strayed far from the historical statutes that once governed citizenship in the United States.

Together, they explore the role of naturalization laws, the legal distinction between allegiance and jurisdiction, and the broader implications for national sovereignty and the rule of law. As debates over immigration and citizenship continue to shape the American political landscape, this conversation offers a deeper look at the legal foundations and consequences behind one of the most contested constitutional questions of our time.

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Transcript

SPEAKER_00 0:02

From the brave roots of our founding, to the unstoppable force of American ingenuity, to the sacred inheritance of freedom we must protect. This is our legacy. Join investigative journalist Lee Smith on Roots, Rights, and Reason. Powered by America's future.

SPEAKER_02 0:21

Hi, I'm Lee Smith. Welcome and thanks for joining us for this new episode of Roots, Rights, and Reason. This week we're discussing an issue that may decide the fate of our nation: birthright citizenship. This is the legal concept that anyone born within our country automatically becomes a citizen. It's grounded in the Fourteenth Amendment, which was ratified after the Civil War in 1868 to ensure that formerly enslaved people and their descendants would be recognized as American citizens. The amendment states all persons born are naturalized in the United States and subject to the jurisdiction thereof are citizens. Supporters of birthright citizenship argue that the amendment establishes a straightforward rule. Anyone born on US soil is a citizen, with only narrow exceptions, such as children of diplomats. But critics, including today's guest, say that the broad application of birthright citizenship extends beyond what the framers envisioned. They argue, for instance, that the children of non-citizens, especially those in the country unlawfully, do not fall within the amendment's intended scope. This issue gained renewed attention just recently when the Donald Trump administration went to the Supreme Court to challenge birthright citizenship. In legal filings and public statements, the administration argued that the Fourteenth Amendment does not automatically guarantee citizenship to all individuals born on US soil, especially children of illegal aliens. The problem isn't just that birthright citizenship tears at our social fabric as it incentivizes foreigners who have no loyalty to our country to come and reap the rewards of American citizenship. And those benefits are paid for by hard-working Americans. Because countries like China have set up large networks inside the United States to support its birth tourism industry, we may someday have to reckon with the possibility that our elections will be decided by people who have U.S. citizenship but whose loyalties are to another country. Indeed, a hostile rival. Our guest today is Richard Epstein, a professor at New York University and author of the forthcoming book, The Myth of Birthright Citizenship: What the Fourteenth Amendment Really Says. Richard Epstein, thanks so much for being here with us today. What is the myth of birthright citizenship?

SPEAKER_01 2:56

That it exists. The uh Constitution is a very complicated document. The birthright citizenship case not only involves American law, but also a healthy dose of English law. And in addition to all of that, the subject of naturalization, that is the process whereby a person becomes a citizen having been an alien, is extensively governed by a set of statutes, which are not entirely pretty, but they began in 1790, just after the Republic was put into place. And this first provision actually knocks your socks off when you read it, but it's dominant for the seas. It begins, every free white person may apply to be naturalized in the United States. And so this was an original racist provision. So I look at it and I said, now where did this thing come from? And if I were to ask you to name the person who drafted this at the state level before the Constitution was put into place, I don't think Thomas Jefferson would become the first name that would come to your mind. But in fact, he was the man who drafted this kind of provision. And it's a very interesting question. How is it that somebody believes that all people are endowed by nature and nature's God with a set of natural rights, all of which are powerful, now can be excluded from a country. And I think the answer to that question is jurisdictional. And that is the theory of natural law does not apply to any particular state or place. It's a theory which starts to tell you in a state of nature this is how things are done. But in order to make sure that these rules can be enforced, you can't have some UN, you have to have territorial states, particularly back in the time that this was done. And those states essentially had the right to exclude anybody from coming in, just as the ordinary property owner has the right to exclude anybody from coming into his land. And what happened is these guys actually wanted to make pretty much an all-white nation at that particular time. And so if you'll note, there are provisions limiting the importation of slaves that start in 1808. And then there's this statute, which is designed to say that anybody who's not a natural-born citizen, all natural-born black citizens were not covered by this, cannot become a citizen in the state. No eligibility. And then what it also did is it put in place a number of other very powerful constraints on how you run a naturalization system. You had to renounce your loyalty to any other nation. And it turned out that the nationalization of a minor child depended upon the naturalization of a particular parent, and you had to establish that you had good character in the way in which this was done. One oddity at that time was that you did not have immigration governed by the natural government. It was a distinct power, and it was very actively supervised, often on racist terms, by the states. Well, you would think that if this is the statute that governs everything, and it was in place through 1866 and was modified only to allow blacks to become citizens or persons of African descent as of 1870, somebody might want to mention this statute and tell you what it's about. And what you can do is look through the entire debates and most of the commentary in support of the modern position, and the naturalization statutes never appear. It's as though they never existed. Well, at this point, what you're doing is you're not writing law, you're writing fantasy. And what you have to do is to make peace with a statute which you don't like and to figure out what it is that they wanted to do with it. And then if you look at birthright citizenship, it becomes much easier. There were two permutations on the effects of the Fourteenth Amendment, which was designed to get rid of uh Dred Scott, meaning, in effect, uh Native Americans who were black were now given citizenship under the amendment to erase a pretty powerful state. But there was no effort whatsoever to change the relationships on naturalization between the United States on the one hand and any other nation on the face of the globe. So, for example, there have been extensive diplomatic immunities that have applied across the world, but they're not related in any sense to the Fourteenth Amendment, as the State Department acknowledges these. Okay.

SPEAKER_02 7:15

With the 14th Amendment, so I I know that this was 1860 ratified in 1868, right after the Civil War, right, to ensure that fr blacks now who uh as you're saying, they were not considered citizens before. Um but now, after the Civil War, they because of the 14th Amendment, they were.

SPEAKER_01 7:38

That's right. But it had to be somebody who was born and naturalized in the United States. What happens is the Fourteenth Amendment was designed to deal with a powerful domestic problem. It was not designed to deal with any kind of foreign relations, because those things were governed by the Naturalization Acts that were in place at the time. And so, for example, international relations talk about diplomatic immunity, and that was never governed by the Fourteenth Amendment. It was only governed by international conventions, which date back to Roman time. And the logic is if you want to talk to somebody, you can't kill them on the way to your office. And there's only one recent illustration where, of course, that principle was obnoxiously violated, and that was in 1979 when Iran was taken over by uh the Mullers and so forth, and they promptly held American citizens with diplomatic immunity illegally for over over a year. And so it's just not dealing with any of that. And indeed, in 1870, the uh problem of naturalization was again approached by statute, and what the statute said for the first time was that persons of African descent are now allowed to be naturalized, that is to go through the proceedings. But that statute was quite drafted in a way uh which did not allow upper Chinese or other Asian persons to become citizens. You'll remember there's a wonderful clip, utterly ignorant by the Chief Justice, who said the Constitution is the same even if the circumstances are different. But he didn't know what the circumstances are. Uh the well, the government lawyer essentially of sour, he just made a blunder.

SPEAKER_02 9:17

So now I just want to make sure that we're talking about we're talking about the case that the Trump administration argued in front of the Supreme Court, and and which you've written a recent article about it, where you express it's fair, I think, to say, if not anger, but disappointment in the Supreme Court and how and how they handled this case. Trevor Burrus, Jr.

SPEAKER_01 9:35

Amazement is also another word. I mean if you have the whole naturalization debate in front of you, I wrote a brief uh with that Ben Swau was letting it out, and not a single word of that particular issue on naturalization is mentioned in a debate about naturalization. Uh how can you why?

SPEAKER_02 9:54

Why? What happened? Why is this not part of the Trevor Burrus?

SPEAKER_01 9:56

If you don't look at the statute, then it turns out you can strengthen the case. So the 1870 version. You mean strengthen the case for birthright citizens? So they want to do it because the 1870 statute basically said no citizenship shall be granted to persons of Asian descent. That only came piecemeal uh starting around 1900 or later, and was the process was only completed in 1943. So you asked why didn't they put the Asians in there? Uh it was exactly what Sauer said about modern time. The United States was absolutely panicked about the yellow peril and had very complicated laws that did this. They blew hot and cold. Uh, often they were not reciprocal. They were designed to allow American entry into China, but not Chinese entrance into America. So at the time that the uh case, the famous case on which everybody relies, Wang Kim Aq in 1898 comes up, it turns out the first sentence is these people carrying Chinese passports. Uh the second sentence should be, by virtue of the fact that they have not renounced their loyalty to another nation, they can't come in. And by the way, they couldn't come in anyhow because the naturalization acts did not do it. End of story. But what happened is the Chief Justice, at the time, not rather Horace Gray, he, shall we say, he'd invented a very interesting tale in which he said if somebody was a permanent legal alien, their children would become citizens without going through the Naturalization Act. That is just flatly false if what you take into account is the way in which the statutes were ordered. And so the Supreme Court is a source of disappointment because none of them, when we pointed this out, that that case was clearly wrong. What they did is they said, ah, here's a passage in that state which said that essentially, unless we do all this, lots of innocent people are going to lose their naturalization. And he referred to Scots and to German. But there's a key difference there, and it goes right back to Roman law. If it turns out there's always a question of whether you could gain citizenship over a long time, and that's called a right of prescription. And what happened in the early part of the 19th century, many, many people came here, started families, and they never went through the immigration process or the naturalization process. And so they're sitting here kind of stateless. And so what everybody said, they've been here for a long time, it's like a common law marriage. Uh, you didn't go through the ceremonies, but since you were allowed to go through the ceremonies, we'll treat you as you went through the ceremonies. The problem with the Chinese is you cannot use long-time prescription if the statute creates a ban on what's going on. So the common law method of marriage is not going to be allowed in these cases. But they didn't see that because that these people don't really know a lot about Roman law, which is one of the courses I've taught very intuitive. We're talking about the court again. We're talking about the Supreme Court. I mean, I I don't look the part, but I've actually a trained Lowman lawyer. That's the first course I ever had in law school in England in 1964, and I teach it to this very day. And so you meet these people who don't know anything about this history stuff, and they just make classic blunders. And that's what's going on here. And the government lawyer did it as well. He did not want to go back to the naturalization statutes because you mean the solicitor general. Yeah, he did not mention the statutes either. Because he was a f because he was afraid that what it would do is would provoke anger because of the racial component built into the statute. Wow. So it's just not there by either side. And he was a clever guy, but too clever by half. He said, do look at Wong Kimok. There's that passage which says everybody comes in. But if you look at the facts, it doesn't go that far because these were permanent legal alias. So he says, I got you two ways, he said. And it's a clever argument. One, he says temporary people cannot get citizenship on that. And there is a distinction in Roman law which was again mangled by the justices, including Justice Kagan, particularly, in which the distinction between what was known at the time as natural allegiance and local allegiance. And that distinction was brought into America. Local allegiance means you're a transient person coming in, you're bound by the traffic laws, bound by the peace laws, you have to pay taxes on your transactions and on your hotel. But once you leave, you're not part of us. And the key point was nobody who had transient jurisdiction could become a citizen. And that law was carried over to America in a case called the Scooner McFadden around 1812. These guys ignore that. And they say, well, the word within the jurisdiction means the same as subject to the jurisdiction. And you think for a second, why would you use two different phrases if they're supposed to mean the same thing? They don't bother to answer that. And the phrase subject to the jurisdiction was also used in the 13th Amendment. So they don't try to explain the differences, they just do it. And every single state uh federal court judge, lower court judge that did this made that mistake. So in the book, what I do, you know, I say all of them are indignant and outrageous that every case has come out the way we've said we're not gonna be the first to change it. But every argument they made was completely erroneous in terms of how the law was developed.

SPEAKER_02 15:17

And the Supreme Court Well what I mean, what are we watching? Are we just watching some sort of uh political Yeah, that's what I that's exactly how I was gonna put it a politicized kabuki theater where they're actually not talking about what's happening, but they all understand the political pressures coming from the left, coming from the right, and so they're pretending that these things didn't exist. I mean, it's likely they don't they also don't know the statutes. You'd know more about that than I do, but it seems like we're watching people dancing around uh a hot button issue, and no one wants to say, yeah, this actually isn't right. Not even the government, not even our solicitor general.

SPEAKER_01 15:55

Well, I mean, but they they're they're technical and they are you know fragile. So they want to take this. He says, well, I could keep the temporary people out, and then since they were legal aliens, I could get those illegal aliens out as well. And so uh Wang Kim Ok becomes a very narrow decision. And the amount of derision that has been put against that position, the wacky arguments that have been put forward by other people in order to explain why this, I mean, I read these articles and I say, wake up, guy, you're in a dream. So I'll just read you one article. I mean, this is at the level of moronic behavior, it's hard to do. Uh, by Ely Hernick, a commentator on CN. The question that will doom Trump's birthright citizen gambling. And the question he wants to ask is, can you be subject to more than one jurisdiction? And he says, yes. So you can be a citizen of Mexico and a citizen of the United States. You could throw in Greece and any other country you want, you could be citizens of all of them. Well, there's a problem with this. First of all, citizenship meant allegiance, and you can't have inconsistent legions. And the second problem is you were required to renounce all other persons. So there's a statute which says you can't do what this man said that you can do, but he never bothered to read it or to quote it.

SPEAKER_02 17:08

This is what when did this start? I mean, when did this stop, rather, that you had to that you had to disavow allegiance to your uh country of Oregon?

SPEAKER_01 17:21

1795. What when 1975? No, seven nine 1795.

SPEAKER_02 17:28

No, no, no, no. I mean, when when did it stop, though?

SPEAKER_01 17:30

When did you it's essentially by 1952 or so it's gone. Uh but if you're trying to do originalism, as everybody's trying to do, you can't say that a religion originalism in 1865 starts in 1950. And in the interim, these prohibitions were very hard. And Horace Gray, essentially, who wrote this opinion, also said if you're not a citizen of the United States and you want to come in, we don't have to give you a due process hearing. We know exactly what's wrong with you. So the area in which there was a lot of contention in the 1890s about the Chinese stuff was if somebody was allowed into the United States by the American government, could they expel them without a hearing? Or do they have to give a hearing? And there was actually a very sharp debate. And then on the question of what kind of hearing do you give them, can it be done by an administrative agency or does it have to be done by a court? Those are things that they were able to. And then boom, this case comes along completely inconsistent with everything. And if you then look both at the debates beforehand and the debates afterwards, uh, all the people on the floor of the Senate said essentially subject to the citizen jurisdiction thereof means loyal to the United States in the capacity as a citizen, not as a tourist or as an illegal person. And all this stuff just gets read out of the record. How? Well, there must be at least a dozen articles, including the arguments, include the one by the ACLU or target, okay, which says the plain meaning of the words are that uh illegal aliens are born in the United States. Uh that they just get the wrong words because they're two sets of words and they don't bother to distinguish between them. And so I went back and there was an article recently by a friend of mine named Jonathan Adler, who cites three famous articles that supported birthright citizenship. So I went through them and I could not find the words naturalization statutes in any of the ones. And so everybody is writing about this as though it's a subject which is purely of common law origin. Now, what happens is when you talk about this, the English did have birthright citizenship. There's no question about it. Blackstone announced it. But the moment you had the Civil War, right, rather the Revolutionary War after he wrote, there was a huge question of what's going to be the status of Americans who decide they don't want to be loyal to the British Crown. Uh the British rule on this was you could not get rid of British citizenship by renouncing it. You had to have the government to do it. Well, you think you're going to apply that in America? Uh and so already the English statute, in terms of the way in which birthright citizenship was done, was completely upended by the circumstances of civil law. And then it turns out there's a federalism issue here. States can do whatever they want. The naturalization clause only talks about citizenship of the United States. And there were many interesting questions about somebody who was an American citizen, then he spent time in British territory, then he comes back to the United States. Is he allowed to vote? Or is he allowed to inherit goods? And these cases went all over the lot, but the point about it is the only government that had power over naturalization, as Hamilton said in the Federalist Paper, is the federal government. So all these state cases essentially are irrelevant. And many of them actually cite a case by a man named Vittel, who was the leading international lawyer of the time, much more heavily cited than Madison, Adam Smith, or anybody in the early days of the Constitution. And he made it very clear that essentially the citizenship of a minor child is determined by the citizenship of a parent. And then you read the American statute in 1790, it says exactly the same thing. And so you get Justice Katanji Brown, and she said, Well, I think it should be centered on the child. After all, it's the child involved. Why should it be tied to his parent? You say, look, now you're going to have split theory, parent families, which you certainly don't want. And by the way, there's a statute which says exactly the opposite that you want to say, but you don't want to bother to read it or to talk about it. And then Justice Kagan, she starts talking about how these were all common law rights that are carried over. A, there were statutory rights. We have our own statute, and all this stuff was not carried over. This is not legal history. This is pure fantasy in the way in which they argue it. It gets me so distressed because they don't even want to see it. And it's very clear which way the precedents go, if you want me to predict the case.

SPEAKER_02 22:04

Yeah, I do. I mean I d uh you're gonna guess you're not optimistic.

SPEAKER_01 22:09

I've just been a recent article um that about this which wasn't optimistic about it. And you know, the by somebody who's actually on the other side of the thing. But you see the trending there. I don't think that's quite right. I I think what's right about this is it's actually two issues. I think on the sojourner issue, there are a lot of people who press very hard uh against Ms. Wang, who's arguing for the ACLU, because they said, look, it's clear that they had a very different view of coming in and the birthright citizenship problem was a serious one. And I mentioned to you if Sauer had known the history, he wouldn't have given it the chance for the Chief Justice to knock this thing out of the park. Uh, but he did. But the justices may do that. On the other one, uh, I what am I supposed to say? I hope when the book comes out, they read the rather angry article that I wrote, they would realize that everything that they said during oral argument was 100% wrong by everybody. It's a very depressing type of situation. I can say, look, they came back to me and said, Professor Epstein, we read your article, and we think you're wrong for the following reasons, right? You can understand that. But if they ignore everything that you've ever written on the subject and come to a conclusion which is the complete odds of it, then it's just an intellectual evasion. And that's what gets people like me so utterly distressed about the way in which this thing has gone.

SPEAKER_02 23:38

Well, let me ask let let me ask, because we're just about, we're we're running out of time and I want to get to this. I mean, that this change, birthright citizenship, has has hurt this country and it threatens to do more damage. So if the decision goes, uh if the decision finally goes the way that you suspect it will, um, what will the consequent damage be to not just to our social fabric, not just to our uh not just to our fight, but our our political system? I mean, the idea that we could wind up with many millions of people here whose loyalty is not to the United States but voting and deciding our elections, what yeah, what does the future look like?

SPEAKER_01 24:22

Well, it looks like a very troublesome future. I mean, just imagine people with dual citizenship with China. They've lived there all their life, they barely speak English, they come here and now they're entitled to a vote in an American election because they're citizens. Um they can't become president, although Aquila Mart actually is silly enough to think that they can be. Uh, it changes everything. It also has the following demoralization effect. You're somebody who actually goes through the legal process. It's a very arduous process to go through. Sometimes you have to return to your home country and then come back and apply. And then you're only a naturalized citizen, you're not a natural-born citizen, so uh you have certain limitations. What happens is now all these other people go to the head of the queue. And they come in first as full citizens, having done nothing of this particular sort, none of the checks on dual loyalties or background or anything. Uh, they're treated as though they were born here because they were born here, but not subject to the jurisdiction of the United States. And, you know, those words carry an enormous amount of rate. You then start looking to find is there any evidence that cuts the other way, other than the so-called plain meaning argument? Well, my friend Sam S. Streicher and uh his student, Mr. Ruddy, they did an exhaustive study of diplomatic practices in the years after 1868, and they found that every administrative decision that had to deal with complicated cases used the traditional definition of what was subject to the jurisdiction of the United States, and none of them basically let it slop over to being born here. There was no practice of that sort. So what you do is that when you have a doubtful provision, and this one's not doubtful, you sort of look at antecedent interpretations and use the subsequent application, and all of them cut 100% in the opposite direction. So listening to these arguments and seeing nothing that was said that was correct, um, it doesn't give you a lot of optimism about this, because if you don't talk about the statutes, Wong Kim Ark becomes a tricky case. So, for example, they spend an endless amount of time obviously, oh, what do you mean by the word domicile? I don't know if you know what the domicile means. You're a normal human being. It means permanent residence, okay? Um, and that was the phrase that was used in Wong Kim Ark, and they're trying to figure out what it means. The phrase is not in the statute. The statute says anybody who resides in the United States, and they don't care where in the United States you reside or whether you stay in one place or plant the move or brown. And so what you're doing is you're arguing about a term that isn't in the statute and ignoring the term that is in the statute. And when you do the other term, it's quite clear they had no particular concern to where you stayed in the United States for the two years that you had to be here before you could apply for citizenship. And then if you start looking at Wong Kim Ark, uh it's this other thing, and you don't know whether or not under the birthright citizen world, you're going to give citizenship to somebody who's born on day two, having arrived on day one. So the two-year limitation is gone. It's a huge circumvention of the basic statute, and it's done without any attention whatsoever to what that statute said. I mean, it's really discouraging. I mean, if you start to see a dozen books and articles that don't mention the statute, or the whole set of them, and completely confident that birthright citizenship is there, and they start looking at people like me as though I'm some kind of a congealed moron, um, it's a very great source of trouble about the intellectual state of the United States when bad arguments don't come. Now, you could even go further than that. One of the things that's done is there's a fetish about the Equal Protection Court. Um, but the Equal Protection Clause in the original divide was citizenship was given to Americans with privileges and immunities, but the due process protections and the equal protection protections were given to aliens, right? And what they really meant by that was perfectly sensible. If you're coming in from overseas, you don't have the right to buy property, you don't have the right to get a job, right? You have to have visas and approvals. Uh but if you're a citizen, you can do both of those things. But there was one thing you could not do as a citizen. You could not vote. If in fact it wasn't, because it wasn't covered by the privileges or immunities cause. And indeed, uh there's a case called the M Minor and Happerstat decide in 1874, where it was unanimously agreed that they drafted the 14th Amendment to make sure that blacks could not vote. This is not a particularly uplifting story. And it did the same thing for women. And the women thing held, and the way in which women got the vote was through a constitutional amendment that never happened on the black side, but it should have happened. Now, why did they do that? Because at the time it was widely understood that if you included voting in the package of rights that you gave to black citizens, you couldn't get the bill through. There was enough southern resentment, northern resentment. So they did it. I mean, so you read this stuff, and what it says, in effect, is what they were planning for. And it's kind of outrageous, but I think it's true. They were planning for a segregated society. And then two things went wrong on all of this. First of all, they didn't want this to be a violent society, and then the Supreme Court in 1876, what it did is in a case called Crooksheine, it let the state, which had essentially terrorized black individuals uh from voting in state election, they let that state court cover the case, and they refused to have federal enforcement of a federal guarantee. And Cruikshine is an utter and total disaster case. And then the earlier case called Flaughterhouse was a different problem. It was a question of whether or not you could have a state-sponsored monopoly for slaughtering meat. And they had to consume the meaning of privileges and a minute.

SPEAKER_02 30:27

And I've heard lots of people who were also uh dispirited, not precisely for the same reason, but talking about like, well, at least the issue is out there, and now there's a possibility that legislation may be written. What's the that we're we're this last question? What do you think the chances are that we'll get legislation written on this that will take care of this issue and put an end to birthright citizenship?

SPEAKER_01 30:50

Well, the answer is a constitutional doctrine, you need a constitutional amendment. What you can do, and will probably happen, is you will put a wall around the country and make it very clear that no pregnant woman who's not an American citizen may come in the United States. And you're entitled to do that. But why do we have to play this kabuki game? If these women want to come into the United States and don't claim birthright citizenship, it's for the benefit of everybody that they do so. So what you're doing is you're cutting off normal uh commercial arrangements in order to make sure that a prohibition that is in the Constitution is enforced by indirection. This is not a good way to do public policy. Being honest actually helps when you have public debates. And this is the debate in which if you ignore the central arguments that are against you, every last one of them, um, and you don't have anybody who talks about it, it's a tragedy of intellectual development and political discourse in this country.

SPEAKER_02 31:46

Richard Epstein, the myth of birthright, citizenship, what the Fourteenth Amendment really says. Again, an enormously timely uh book. Congratulations. Thanks for being with us on Roots, Rights, and Reason. And thanks to all of you for watching Roots, Rights, and Reason. We'll see you in our next episode.

SPEAKER_01 32:05

Thank you for having me.