Further Parsing "Birthright"

Section 1, the citizenship clause, of the 14th Amendment says nothing about Indians. Section 2, regarding apportionment, explicitly excludes Indians, but only by inexplicit inference has a meaningful connection to Section 1 and citizenship. Nevertheless, it was an inference that at the time everybody understood: Indians born in the U.S. weren't citizens. The discrepancy between Sections 1 and 2 wasn't repaired until 56 years later, in 1924, with the Indian Citizenship Act. Two things, then, are clear: the phrase "subject to the jurisdiction thereof" in Section 1 contains within it the possibility of at least more than one interpretation; and, that the 14th Amendment could be changed in application, not by constitutional amendment, but merely by statute. (Parenthetically, is it reasonable to suppose that the meaning of the 14th Amendment can only be expanded, but not contracted, through legislative interpretation?)

Even within living memory of the passage of the 14th Amendment its meaning was ambiguous. Thus, thirty years later, in 1898, the Supreme Court accepted Wong Kim Ark, which decided that the children of legal aliens possessed birthright citizenship. If the 14th Amendment possessed an automatic, literal meaning of unambiguously allowing birthright citizenship, the Court would not have needed to take that case.

Where, exactly, is the legal precedent for asserting a constitutional right to unambiguous, unconditional birthright citizenship? The onus of the argument, indeed, is upon those who assert such a right. And the fact remains that such a case has never been brought to the Supreme Court.

As I've noted in previous blog posts, Wong is the closest that the Supreme Court has ever gotten to ruling on birthright citizenship. But if one were to engage in a thought experiment, to ask whether in 1898 the Court would have found for Wong if his parents had not been "resident" aliens, but instead had avoided customs and slipped off a boat in San Francisco harbor, to work in the underground economy instead of, as the Court's decision recognized, a lawful commercial enterprise, it's entirely reasonable to suppose that the Court would have ruled differently.

There are legal and policy arguments to be offered on both sides of the question. I believe that making birthright citizenship conditional, through legislation, is the fair solution, but at a minimum there should be an open exchange of views instead of continual adversion by the left to what's "obvious" or what's "settled," when not much about this issue has ever been either "obvious" or "settled."