Trump Challenges Birthright Citizenship

The late Supreme Court Justice Antonin Scalia was what we call an “originalist” when it came to interpreting the U.S. Constitution. He believed the only way to read the Constitution was in the context of the times when its provisions were written which formed the intent of those who wrote and later amended it. We could only interpret what they meant by reading what they wrote through the filter of the events of their day, not our day.

The issue of the 14th Amendment and whether it conveys birthright citizenship just from being born on American soil  has resurfaced in the context of the current debate on immigration and border security. The answer can be found in looking at the times in which it was written and examining the actual words and thoughts of those who wrote it.

The 14h Amendment was written in 1868 after a bitter Civil War ended slavery. It was written to ensure the civil rights of freed slaves and to correct the injustices spawned by the 1857 Dred Scott decision which denied that blacks were entitled to citizenship under the Constitution. Surely it cannot be seriously argued that the authors of the 14th Amendment had in mind babies born to residents of Mexico, Guatemala, Honduras, and El Salvador who managed to sneak their pregnant bodies past a U.S. Border Patrol that didn’t exist yet in violation of immigration laws that hadn’t been written yet?

Like abortion rights, which were divined from the “penumbras” and “emanations” said to be lurking somewhere in that document, supporters of birthright citizenship say, well, the language is imprecise and the authors didn’t really mean to exclude the offspring of Guatemalans born in states which didn’t exist in 1868. This is a clear violation of the Scalia originalist doctrine. The Constitution is not a living document and should be read in the context of the events of 1868, not 2019.

President Trump has once again noted the absurdity of the modern interpretation of the 14th Amendment that invented the concept of birthright citizenship for illegal aliens. As reported by FoxNews: