Discussion on Birthright Citizenship

The essential question surrounding birthright citizenship is whether individuals, who entered the country “without the authority of the law,” should be counted like other citizens. Theo Wald, a former assistant attorney general and White House deputy chief of staff for domestic policy under President Trump, highlighted this on a television show. He mentioned the Supreme Court’s recent hearing on the topic, which, for most Americans, should seem straightforward. Yet, Wald suggested it reflects some of the views held by those advocating for legal citizenship at birth for children of undocumented immigrants.

Wald pointed out that many left-leaning thinkers tend to view the 14th Amendment as immutable.

“It’s as if it’s frozen in time, unable to change. Why? Because it dealt with a specific historical issue regarding black slaves, and the framers intended for no Congress to alter its fundamental meaning,” he argued, adopting a devil’s advocate stance.

He continued, “Rather than accepting that view, our administration examines the exceptions they created. For instance, the 14th Amendment does not apply to children of ambassadors, Native American children, or those from foreign invading forces.” Wald noted that Chief Justice John Roberts had echoed some of these sentiments later emphasized by liberal justices.

“Roberts mentioned that exceptions such as those for foreign invaders are minor. We don’t face many exceptions like that, and there aren’t countless foreign ambassadors with children everywhere. Then you have to ask, how does this apply to a larger group of children? His conclusion was that the meaning of the amendment had essentially become fixed,” Wald remarked.

He pointed out that drawing parallel logic from these exceptions is, unfortunately, not permitted, leaving the Trump administration at a disadvantage. “I believe even average lawyers would look at this and wonder, ‘What’s going on here? We apply analogies all the time,'” he stated, referring to Justice Samuel Alito as a counterexample to this reasoning.

Wald reflected on Justice Alito’s comparison, indicating, “It’s similar to how microwaves didn’t exist when parts of the Constitution were framed. However, we can adapt to new technology and understandings of traditional practices based on today’s knowledge. I think Alito’s analogy is a solid example.”

He reminisced about a Fourth Amendment case concerning search and seizure, likening it to placing a tracking device on a vehicle. Alito’s analogy compared actions from the 18th century British military against American patriots. Wald asserted that this legal analogy exercise is routine, emphasizing that Roberts’ reasoning was flawed as it did not consider the fundamental tenets of the issue at stake.

“The key principle here is whether children born to foreigners who entered illegally are treated the same as other citizens,” Wald questioned. “For many thinking this through, the answer seems clear. How can that possibly be the case? It raises serious concerns about our ability to function as a society,” he added.