Jeb! calls for convention of states

In the weeks since the election, Jeb(!) Bush has been conspicuously absent. He ended his absence today with a surprising op-ed in the Wall Street Journal that, among other advice to the president-elect and the Republican Party, calls for a convention of states to amend the Constitution.

Bush, who acknowledges that Mr. Trump “tapped into the anger and deep distrust that voters feel toward Washington” and the belief that “our system is skewed in favor of the powerful and the connected,” points out that “This election was more about voting against something than voting for something. Americans voted against the ‘establishment,’ against the country’s changing culture, against a dysfunctional Washington, against the privileged, against Hillary Clinton—and, yes, against Donald Trump.”

Bush notes that, even though Republicans won a decisive electoral victory, neither Trump nor the party is popular. To assume that the election results are a mandate for everything that Trump campaigned on, even as he trails by more than 2 million popular votes, might lead to the same trap of federal overreach that ensnared Barack Obama.

Instead, Bush argues for a positive agenda that will appeal to the majority of Americans. “Americans, by wide majorities, agree that Washington is broken, so let’s send power back to the people and back to the states,” Bush writes. “Republicans should support convening a constitutional convention to pass term limits, a balanced-budget amendment and restraints on the Commerce Clause, which has given the federal government far more regulatory power than the Founders intended.”

What Bush is referring to here is typically referred to as an “Article V convention” or a “convention of states,” an alternative method of amending the Constitution that has never been used, but that has been much discussed in recent years. Article V of the Constitution provides that two-thirds of the states can call a constitutional convention and amendments can then be ratified by three-fourths of the state legislatures or conventions in three-fourths of the states. This would require 34 states to call for the convention and 38 states to ratify.

While the election of 2016 may give Republicans their best chance at a successful Article V convention, it is by no means a slam dunk. Ballotpedia shows that starting in 2017, Republicans will control all three branches of government in 25 states. While this is a historic high, it falls short of the number of states required to ratify an amendment or even call for a convention. Conversely, only five states are completely controlled by Democrats. This falls short of the 13 states needed to block an amendment.

These numbers give the Republicans have an advantage, but the 20 states with bipartisan government control will be decisive. A constitutional convention would be dominated by Republicans, but there would be no blank check. Republicans would be forced to compromise to amend the Constitution.

Perhaps realizing the difficulty of amending the Constitution, Bush offers an agenda that can be accomplished through Congress. “Most critically, Republicans should reverse the Obama-era policies that have made America weaker, both here and abroad. We need to repeal and replace ObamaCare, eliminate business-killing regulations, and reverse the massive expansion of government. While we protect our borders and our laws, we should also take on the hard work of reforming legal immigration and affirming the role that immigrants play in building up our economy and our nation.” Bush also calls on the new president to “restore American leadership in the world” and “protect and reassure our friends and allies.”

He also calls upon Republicans to repair their party’s tarnished image. “Republicans must restore our brand as the party of conservative ideals, shared prosperity, liberty and responsibility,” he writes. He stresses that this should be done “without stooping to the identity politics of the left. Let’s not focus on angst, grievance and division over race, class or gender.”

Bush makes the point that Trump’s victory was neither a license for Republicans to take reckless action or an excuse to take the reins of power and then rest on their laurels. Democratic overreach and disregard for the will of the people is what handed the Republicans this victory. The voters will hold Mr. Trump accountable if he does not follow through with his promise to “make America great again.”

“The GOP has no excuse for failure,” Bush writes. “We are in charge of both the executive and legislative branches in Washington, and we dominate in the states like never before. We have the power to set the agenda, and we have the responsibility to govern, not merely on behalf of the voters who supported President-elect Trump, but for all Americans.” 

The scoop on birthright citizenship

Gage Skidmore/Flickr

When Donald Trump revealed his immigration policy this week, the aspect of the plan that got the most attention was his desire to deport the American-born children of illegal immigrants. Under current US law, children born in the United States automatically become US citizens. In his plan, Trump says that this policy, “birthright citizenship,” is the “biggest magnet for illegal immigration.”

Birthright citizenship is also called “jus soli,” which means “the law of the soil.” Like many aspects of American law, it has its roots in English common law. In Calvin’s Case, a 1608 ruling, the court determined that a Scotsman born under the reign of King James of Bible fame, whose rule united the kingdoms of Scotland and England, was also an English subject. The court found that “a person's status was vested at birth, and based upon place of birth—a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection.”

The Naturalization Act of 1790, the first US law addressing immigration and naturalization, did not specifically address the citizenship of aliens living within the United States, but the fact that English common law subsequently became US common law was referenced in an 1866 federal circuit court decision in the case of United States v. Rhodes. Justice Noah Swayne wrote, “All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.” The only two exceptions, Swayne wrote, were the children of ambassadors and the children of slaves.

The slave question had been raised nine years earlier by the Dred Scott decision, generally considered one of the worst decisions in Supreme Court history. In that case, the Court ruled that slaves were not US citizens and struck down the ability of Congress to prohibit slavery in the territories.

Earlier, in 1830, the Supreme Court had specifically endorsed jus soli in the Sailor’s Snug Harbor case. The Court held that the infant son of a loyalist, born in American-occupied New York City, was a US citizen by birth, even though children born after the British occupied the city were not.

After the Civil War, the 13^th and 14^th amendments were passed to effectively overturn the Dred Scott decision. The 13^th amendment made slavery illegal while the 14^th amendment extended citizenship rights to former slaves and banned former Confederate officials from holding public office.

Section one of the 14^th amendment reads:

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.

The first clause of the amendment specifically codified the traditional birthright citizenship of common law. The phrase “subject to the jurisdiction thereof,” hearkens back to Calvin’s Case and Justice Swayne’s decision in US v. Rhodes. Under this view, being born in a country automatically makes one subject to the laws and jurisdiction of that country.

Even before Donald Trump burst onto the political scene, some Republicans were challenging birthright citizenship for illegal aliens on the grounds that immigrants who were in the country illegally were not “subject to the jurisdiction” of the United States government.

The Heritage Foundation makes this case by claiming that Senator Jacob Howard (R- Maine), author and proponent of the citizenship clause, specifically pointed out that Indians were excluded from citizenship because they owed their allegiance to their tribe and not to the nation even though they were born within the geographical limits of the United States.

Other historians point out that Howard also said that the 14^th amendment was intended to mirror the Civil Rights Act of 1866. Sen. Howard was also a strong supporter of this law and indicated that it was the basis for the 14^th amendment. The Act stated, “… 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….”

Birthright citizenship has been established since 1898 when the Supreme Court ruled in favor of Wong Kim Ark. Ark was born in California to Chinese citizen parents. Ark moved to China with his parents after the passage of the Chinese Exclusion Act in 1882, but returned to the United States, the only home he had ever known. Four years later, he visited his parents in China and, upon his return, was not allowed to enter the US on the grounds that he was not a citizen. 

The Supreme Court ruled that a child whose parents “have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution.” Ark’s parents, who were citizens of China, were not excluded from being under the jurisdiction of the United States.

While the Supreme Court has never ruled on the question of whether illegal aliens are subject to the jurisdiction of the United States, but the Wong Kim Ark case would seem to settle the question of whether having parents who are citizens of a foreign country would prevent birthright citizenship. The Supreme Court rejected this theory more than a century ago.

Rep. Steve King (R-Iowa) introduced a bill this year, H.R. 140, which would define a person born in the United States and “subject to the jurisdiction thereof” as a US citizen or national, a lawful permanent resident alien residing in the US or an alien performing active service with the US military. By redefining the meaning of “subject to the jurisdiction,” King and the bill’s proponents hope to legislatively end the ability of illegal aliens to anchor themselves in the United States with a native born child.

A possible problem with this strategy is that the second clause of the 14^th amendment reads “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” King’s bill, which would effectively abridge the birthright citizenship rights of the children of illegal immigrants, might well be considered unconstitutional under the 14^th amendment.

With the present balance of power in Congress, King’s bill is unlikely to pass the Democratic filibuster. If it were approved by Congress, it would face a certain veto by President Obama. If it became law, it would almost certainly be challenged in court.

If King’s bill were ruled unconstitutional, the next step would be to amend the Constitution to change the 14^th amendment. A constitutional amendment must be approved by a two-thirds vote in both the House and the Senate and then ratified by three-fourths of the state legislatures. An amendment repealing birthright citizenship would have no chance of passing the current Congress where Democrats control enough seats to prevent the amendment from even being considered.

An alternative method of amending the Constitution is by a convention called by two-thirds of the state legislatures. At last count, 27 states had passed a call for a convention of states, seven short of the necessary number. An amendment proposed by a convention of states, also called an Article V convention, would still have to be approved by three-fourths of the state legislatures. Only 13 states are needed to block an amendment and Democrats control more than enough state governments to prevent the redefinition of birthright citizenship.

Nevertheless, a number of Republicans have signed on to oppose birthright citizenship. Among the major presidential candidates, Scott Walker, Chris Christie, Ted Cruz, and Bobby Jindal have expressed support for redefining birthright citizenship according to CNN. Ohio Gov. John Kasich, who had supported a bill to eliminate birthright citizenship as a congressman, now opposes the change.

As noted by NPR, birthright citizenship is practiced almost exclusively in the New World where populations are made up largely of immigrants. Only 30 of the world’s 194 countries provide automatic citizenship for babies born within their borders.

Any attempt to change the traditional US policy of birthright citizenship faces an uphill struggle. If the change somehow makes it through Congress, it is almost certain to be challenged and struck down by the courts. For the near future at least, birthright citizenship is here to stay.