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George Will's War on Birthright Citizenship and His Own Constitutional "Principles"

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George Will's column in Sunday's Washington Post argues that there is solid grounding for denying birthright citizenship to children born in the United States of illegal immigrants.

Here's what the relevant clause of the 14th amendment says:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (my emphasis)

Will believes that birthright citizenship is based on a simple misunderstanding of the relevant clause of 14th amendment (one which, apparently, no one has caught these past 144 years):

What was this intended or understood to mean by those who wrote it in 1866 and ratified it in 1868? The authors and ratifiers could not have intended birthright citizenship for illegal immigrants because in 1868 there were and never had been any illegal immigrants because no law ever had restricted immigration.

If those who wrote and ratified the 14th Amendment had imagined laws restricting immigration -- and had anticipated huge waves of illegal immigration -- is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not.

Will cannot imagine that the absence of any laws restricting immigration at the time must mean what Will thinks it means, that had they known about things like the potentially disruptive effects of mass immigration, there's no way they would have allowed such chaos to have ensued. But recall that enormous waves of Irish immigrants had already been arriving by the 1840s, a development that sparked intense opposition, the rise of anti-immigrant parties, pervasive and ugly anti-Irish sentiment and, of course, deep social unrest, including the draft riots during the civil war. In other words, Congress wrote the 14th amendment as they did notwithstanding a profound and immediate experience with the disruptive effects of large-scale (and, according to Will) un-regulated immigration. In light of these facts and contrary to Will, perhaps it was the case that, in 1866, a (large) majority of Congress believed that part of what it meant to be a free country was that people could freely decide to live here, subject to the appropriate laws and regulations once they did arrive. And that it wrote and ratified the birthright clause of the 14th amendment fully mindful of the consequences of large-scale immigration of often despised peoples.

But since Will has now introduced the crystal-ball method of constitutional interpretation, I think one can reasonably argue that the second amendment cannot mean what people like Will and the NRA think it means. After all, is it reasonable to assume that, had the framers known in 1791 about assault rifles, cop killer bullets and other modern weaponry, not to mention the ease of acquiring and stockpiling arsenals in private homes that would have dwarfed the arsenals extant in state militias at the time of the second amendment's ratification, they would ever have consented to such obvious insanity? Surely not.

Will's arguments also expose a central fallacy of reigning right-wing constitutional orthodoxy - that the concepts of strict construction and original intent constitute twin pillars of that orthodoxy's supposed fealty to timeless verities. In fact, Will's analysis shows that the two can fundamentally contradict one another. Will is trying his damndest to glean the original intent of the birthright clause as he sees it (nevermind that, in part, he's doing so by insisting that divining the future is now a valid basis for constitutional interpretation). But he cannot escape the inescapable - the language of the 14th amendment could not possibly be more plain. On strict construction grounds, Will's dealing a losing hand.

Not that he doesn't try. Will argues that:

The Civil Rights Act of 1866 begins with language from which the 14th Amendment's citizenship clause is derived: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."

What is the implication of this language, which Will has determined should be considered to be the language of the 14th amendment itself, even though it isn't?

The explicit exclusion of Indians from birthright citizenship was not repeated in the 14th Amendment because it was considered unnecessary. Although Indians were at least partially subject to U.S. jurisdiction, they owed allegiance to their tribes, not the United States. This reasoning -- divided allegiance -- applies equally to exclude the children of resident aliens, legal as well as illegal, from birthright citizenship. (my emphasis).

If it is true that the premise of the birthright clause is undivided allegiance, then there is a category of people whose off-spring are, arguably, less entitled to citizenship than those of illegal immigrants. That, of course, would be the category of dual citizens. One could reasonably argue that, whatever their formal legal status, illegal immigrants have made a risky choice to go all-in on living in America. But can one really say that about dual citizens, who have made a clear decision not to have undivided loyalties, at least legally speaking?

If it is true that the clear though unstated premise of the birthright clause of the 14th amendment is that one must have undivided allegiance to the United States in order for one's off-spring to be citizens of the United States, dual citizens' children do not qualify.

Lest anyone misunderstand me, I am not actually arguing that children born in the United States to parents with dual citizenship should be denied birthright citizenship. Only that Will's logic would seem to compel that.

But we all know that Will doesn't really care about divided loyalties and dual citizens. Will finally gets to the crux of the matter in his final paragraph:

Congress has heard testimony estimating that more than two-thirds of all births in Los Angeles public hospitals, and more than half of all births in that city, and nearly 10 percent of all births in the nation in recent years, have been to mothers who are here illegally.

Beneath the veneer of the legal sophistry that pervades his column is a simple and ugly truth: maybe Will just doesn't like the specter of all those dirty illegals in Los Angeles having babies who then get to be citizens. If stopping those babies from growing up to have the same legal rights and privileges as Will and his off-spring requires him to contort his supposed constitutional principles, then so be it.

Jonathan Weiler's second book, "Authoritarianism and Polarization in Contemporary American Politics," co-authored with Marc Hetherington, was published in 2009 by Cambridge University Press. He blogs about politics and sports at www.jonathanweiler.com.