Get. The Hell. Over It.
I don't know how to properly express how nonsensical I find this theory of dodging the 14th Amendment in order to find children of undocumented American immigrants non-citizens, and therefore deportable. It requires ignoring over a hundred years of settled law. It requires a willful misinterpretation of the actual text of the Amendment, the documented intent of that Amendment and yes, a hundred years of settled law. It's a bit akin to declaring that you're no longer sure Arkansas exists because you've asked three people and not one of the three can vouch for it. And for a movement obsessed with
activist judges rewriting laws willy-nilly, it sure is keen on
creatively rewriting this one.
A central tenet of Eastman and Graglia's [legal theory] hinges on the language of the 14th Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The common understanding of "subject to the jurisdiction thereof" was that it was a narrow carve-out for the children of diplomats, enemy combatants on US soil, and American Indian tribes. But according to Eastman, "subject to the jurisdiction thereof" means that in addition to being born in the United States, a child must have at least one parent who owes allegiance to the US government by being a permanent legal resident.
This is nonsensical to the point of absurdity. Supposing a child is not
subject to the jurisdiction of American law despite being born in America, and raised in America, and having throughout their lives to abide by all American law—declaring them not in
subject to the jurisdiction of American law despite all the rest, if their parents are not themselves citizens? Does that mean the children of immigrants are exempt from traffic laws? From drug laws? From food safety laws? If one is murdered, is there anything to prosecute?
The notion of who was subject to the jurisdiction of American law was settled as of 1898, in a case that itself was born of open racism against immigrants and their children. We had settled that the new amendment made all native-born black Americans official citizens of the nation, but did the native-born children of even Chinese immigrants have the same status? In United States v. Wong Kim Ark, the Supreme Court ruled that it did, as both parents and children were clearly under the "jurisdiction" of American law, and "birthright citizenship" has been established precedent ever since.
Nonetheless, this new Trump-referenced theory as to why the Constitution as written doesn't apply to certain brown folk has indeed become a favored topic in the usual I'm-not-a-racist-but forums, places like the National Review that cannot seem to help flitting from advocating from one from of segregation to the next, and among national politicians who continually gravitate toward all the other overt and non-overt forms of racist rhetoric, from advocating for English only laws to Trump's declaration that undocumented immigrants are "rapists." And the supposedly brilliant architects of this theory are themselves, shall we say, controversial.
Eastman, a professor at Chapman University School of Law in California, is the chairman of the National Organization for Marriage, a group that fought bitterly against same-sex marriage, and he once equated homosexuality with "barbarism." Graglia, of the University of Texas at Austin's law school, is a longtime opponent of affirmative action and busing programs. His comment in 1997 that black and Hispanic students "are not academically competitive with whites" earned him the moniker "the most controversial law professor in America."
Yes, what
are the odds that persons who flit among theories of white supremacy, rail against desegregation efforts and see menace in The Omnipresent Other would also happen to be the ones now declaring a legal loophole to century-old law as regards certain brown-skinned children today. Go figure.
Again, this whole premise seems nonsensical to the point of empty propagandizing—food for rubes, and specifically the same rubes also occupying themselves with visions of mass deportations, work camps, and private immigrant-hunting border militias. All of this in order to strip citizenship from American-born children who have never known any home or "jurisdiction" other than their own American towns, but whose bloodline is deemed to be insufficiently pure to be considered true members of the nation.