Program transcript:
Grant Reeher: Welcome to the Campbell Conversations, I'm Grant Reeher. Perhaps no policy change put forward by the Trump administration has generated more controversy, and perhaps more anger than the effort to eliminate birthright citizenship as set forward by the 14th Amendment. My guest today has written a new book that argues that the meaning of that amendment has been widely misinterpreted, and that the right of citizenship involves more than mere location of birth. Richard Epstein is the Laurence A. Tisch Professor at New York University and a Professor Emeritus at the University of Chicago. His new book is titled, "The Myth of Birthright Citizenship: What the 14th Amendment Really Says." Professor Epstein, welcome to the program.
Richard Epstein: Oh, it's very nice to be here. Thank you for having me.
GR: Well, we appreciate you making the time. So, I'm going to start the same way that you started your book, and that's by stating the relevant part of the 14th amendment that we're going to be discussing. It goes like this, “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”. And as you say right there at the beginning, the words seem simple enough, but we're going to find out they're a lot more complicated, I guess. So, first thing I wanted to ask you is, just remind our listeners briefly of the context for that 14th amendment.
RE: Well, the basic inspiration for it was the understanding that we had just passed in 1865, the 13th Amendment, which abolished slavery. And then the question was, was it going to be sufficient authorization for the civil rights acts that were planned for 1866? They passed the Civil Rights Act, mainly doing not with political issues, but with the question about the right to contract, make will, sue and be sued and so forth. And then they had a collective angst. And what they said is, we're not sure that the 13th amendment does it. So they said, let's do the 14th amendment, and you have to divide it into two parts. One of those things which were indisputable, and the first of those is that any black person in the United States who was covered by the Dred Scott Amendment, or decision, was, in fact, now a citizen of the United States with full rights of citizenship, whatever those turn out to be. But that's the easy part. And the harder questions are, to what extent that we mean this to interfere with relationships that did not involve the Dred Scott situation? Mainly the question, what do we mean by naturalization and what do we mean by subject to the jurisdiction thereof? Naturalization was absolutely stunning to me. I had not read it carefully, but it begins from 1790 with the words, any free white person may apply for citizenship. So there was a racial bias built in at the front end. The , subject to the jurisdiction thereof, did not mean within the jurisdiction, subject to the jurisdiction thereof meant that you were a subject, British sense, of the United States government and citizen therefore had to be defined, and it was defined solely in terms of the protection that the government would give you and in terms of the loyalty that you owe to the government. Key point to remember about this, is voting was no part of citizenship. Women were never citizens of the United States early on, they were not made citizens by the 14th amendment. And if you go back to the English tradition, it was exactly the same way. And so, if you do this, somebody who just simply lands on the soil of the United States, or is a birthright tourist and doesn't meet the subject to the jurisdiction thereof, they’re just within the country. What that meant is they were given certain kinds of privileges, i.e. to conduct business in the ordinary fashion and to obey the laws. But once they left, there was no further contact between the visitor on the one hand, and the government on the other.
GR: Okay, you kind of anticipated my second question, which was to give a summary of why you think it doesn't apply in the way that a lot of people today think it does, and you just did that. Let me ask you this question then, so the amendment is passed, it's there, and as you say, you know, there's this question then of how it's going to be applied after it's applied to former slaves. Were there significant moments in our history after the amendment, perhaps involving certain groups of people, when the meaning of this becomes contest, when we discuss this as a nation before the current moment that we're in?
RE: Yes. It turns out that the basic plan of the amendment was, in fact, one which is not quite understood. It was to leave all voting issues to the States. So, there was no voting component to the 14th amendment. Indeed, it would not have passed if you had given the franchise to black individuals at the time. Remember, this was a very conservative bunch. It also had nothing to do with Indian relationships because they were kind of quasi tribes. And in effect, it was not meant to have anything to do with foreign affairs, which was governed not by the 14th amendment, but by all sorts of diplomatic immunities and privileges which had been in effect from Roman times forward. So, it was exclusively directed to that. And the early decisions on it, were a couple, and they were in some sense quite disastrous. The first of these decisions, a case called Slaughterhouse, which came down in 1872. And what it did is it eviscerated the protections of the Civil Rights Act of 1866. As I mentioned, that act had to do with the ability to enter to certain kinds of civil transactions on the same conditions as white people. And this was a very strong move forward in what had happened. But the Supreme Court, when it got it, was worried about a perpetual censorship by the federal government over the states. And so it restricted the 14th amendment to only two things, the right to petition government on the one hand, and the right to sell ships along navigable waters on the other, which means that everything that was listed in the Civil Rights Act of 1866 was not covered. Second disastrous (unintelligible) was one of the provisions of the statute was to make sure that violence would not be launched against black citizens, and newly created by making sure that the federal government had the power to enforce the Civil Rights Act, and those statutes would pass in just those terms. In the case called Cruickshank there was a massacre that took place in Louisiana, and large numbers of black soldiers were killed by white racists. And the question is, could the federal government intervene to get rid of this kind of situation? And the Supreme Court, at one of its most reprehensible decision(s), said, well, we look at this stuff and we think everything on these issues is meant to be left to the States, none of it to the federal government. And this is absolutely wrong in terms of history. Most people do not read closely the causes after the one that you read. But the cause on privileges or immunities applies only to citizen, the clause on due process and equal protection applies to all person. And so, the federal government was designed to do was to make sure that basic acts of terror would be subject to it to enforce. And what Cruickshank did is it removed all of that protection in one of the most sloppy opinions I've ever read in my life, which meant that southern justice was now put into the hands of the very guys who'd committed the wrongs in question. And this structural failure lasted for a very long time. So those are the two disastrous opinion. The third decision from 1874, a case called Minor and Happersett. And it involved the woman who claimed that she was a citizen of the United States entitled to vote because of the privileges and immunities clause. And what happened is the court unanimously said no, this clause only created citizenship and the reciprocal arrangement, all the voting arrangements were left to the states. And there was a well-known decision called Corfield and Coryell from the 1820s. And what that held is that amongst the privileges and immunities you have under the original Constitution, not the 14th amendment, was the right to vote in accordance with the usages of the local community, which meant, in effect, that the states were in charge of this. This was not a huge surprise, because in the original design it was pretty clear that voting was in fact a state issue, not a natural issue. This is one of the problems that you have or benefits you have, take it whichever way you want, when it turns out that you give enumerated powers to the federal government. And if one had to give a real criticism of the original constitutional convention, it's not a trivial one, but they under-powered the federal government with respect to many of the things that it turned out to do. And when do you think they found this out? They figured it out by 1789, when they had the first Congress. Because the Judiciary Act tries very hard to expand the power of federal jurisdiction, because they realize if you follow the method that was designed by the original founders, the Constitution is indeed the supreme law of the land and all the statutes pursuant to it. But nobody can forget the second clause, which says in the judges in every state shall enforce it. Can you imagine having a federal Constitution enforced by the first 13, 15, 20 judges, each having different interpretation and no unified way to figure out what's going on? It's a disaster. And so, what happened is in the Judiciary Act, and I think in section 25, they passed this section which said any adverse decision made by a state Supreme Court can be reviewed in the Supreme Court of the United States. There's no appellate jurisdiction of that sort anywhere in the particular amendment. And what justice story did is what my daddy called a long time ago, he said, son, sometimes you have to learn to rise above principle. And what he meant was, you read this thing accurately and there's no United States. You cheat a little bit, the country now has a fighting chance to live, and all sorts of things in the Constitution have that kind of characteristic, they under-powered the federal court. For example, there was no mandatory jurisdiction to create lower courts. And if you didn't do it, where's all the federal business going to go, to state courts? And how is that going to work, and what are you going to do with the District of Columbia, which doesn't have a state court? There were all sorts of major problems with that. And what the guys did is they started to fiddle. And the thing to understand about a Constitution, is we're all originalists about the clauses we like, and we're all ignoring the problem about the clauses that we don't like, including that. And so, you keep going. I mean, just another point, the word citizen. Well, what does it mean in the 14th amendment? Well, you say to yourself, is a corporation a citizen? And then you start to think about, that's absolutely bizarre, right? Dred Scott applies to corporations and to slaves? No. What they did is they gave jurisdiction over citizen disputes between citizens and different states. And then you realize there's no ability to have a federal court to deal with the problem created for a corporation in one state that's incorporated and wants to do business in others, and you can't get into federal court. That lasted about 110 years, and then all of a sudden, a citizen became a corporation, and it was a citizen of the state in which it had its charter and a citizen of the state in which was its primary course of business. You look at the text, it's just absolute fiction. Now I'm going to ask you, do you really want to go back and say, you know, they got it wrong? So every decision involving every corporation for the last 200 odd years is null and void, because there was no jurisdiction. We don't do things that way. We just basically ride with our errors. And that's part of the problem in the culture with respect to the 14th amendment. What do we do when we get this funny discontinuity? So, at the time, you then start to look at and say, well, what were they trying to do? And one of the things they were trying to do was to make sure that blacks had right to enter into the commercial society, and the courts managed to destroy that. Then it was supposed to give people protection against crime, and the courts supported that. But that middle class of cases between private contract rights and government enforcement is the distribution of public benefits, right? And there's nothing in the 14th amendment that talks about that. And so, if the state wants to give 40 acres and a mule, can it give it only to former slaves, or does it have to give it to everybody? And the answer at the time is you could give it to whomever you want. Why is that? Because the 14th amendment and its equal protection and due process clauses only apply to criminal matters, and whenever divvying something away is it's not a crime. And so go through the whole situation and that's what you end up seeing, this huge area of massive public discretion. And there's no question, however unpleasant it may be, that these guys contemplated a system of state segregated schools. How do you like that? Bad news. That's what they did.
GR: You're listening to the Campbell Conversations on WRVO Public Media. I'm Grant Reeher, and I'm talking with Richard Epstein. He's the Laurence A. Tisch professor at New York University and the author of a new book titled, "The Myth of Birthright Citizenship: What the 14th Amendment Really Says." And as you can tell from our conversation before the break, it's very complicated. Let me follow up on something, professor. I've seen that you said that has struck me over the years, and you summarized it very well in terms of when people want to look at the context for something and when they don't want to look at the context for something that is in different amendments and in the Constitution. The one that struck me was to compare the folks that want to not look at the context here, but just look at the words very, kind of narrowly interpreted are oftentimes the same folks when it comes to the Second Amendment, the right to bear arms, keep and bear arms, want to talk about the context. This was about having a militia, we don't have the same needs anymore, this right shouldn't be applied in the same way. That's what I've seen over the years, is it's exactly as you say. When you want to get to a certain outcome you might say, we have to look at the context. You want to get to a different outcome? No, we're just looking at the text here. And so, this kind of selective originalism, maybe it was one I'll put on this that you're talking about.
RE: That’s the Citizenship case.
GR: So, let's sort of take it in that regard then. What do you make of the argument that I have heard made that the understanding of birthright citizenship, for lack of a better word, I'm going to say the more liberal interpretation or the more literal interpretation, you're born here, you're a citizen, that's an important part of America's brand in the world. It's become sort of part of America's essential promise.
RE: Well, first of all, it's not the literal meaning. The literal meaning takes the words, subject to the jurisdiction thereof, and puts it in contrast within the jurisdiction.
GR: All right, I misspoke then.
RE: Okay, okay. But on the branding question, it's extremely important. The single most powerful feature about American culture has nothing to do with this provision. It has to do with the general open immigration laws that existed in the United States in the period before 1924 when the Dawes Act was passed. And that's when my answers came and large number of other people came. And it turns out you had millions of millions of people come into the country under these circumstances. Many of them went through the formal process of naturalization, some did not. But that's the population group that created this ragtag immigrants coming into this country. Smaller numbers, sometimes they’re people, young males without families and so forth. Other times they're rich people coming from China, going to Guam, giving birth to their baby and then going back home. That has nothing to do with it. And in fact, one of the things that I would say is if you were to treat this as a political question and ask people, would you want the United States to be able to determine who becomes a citizen or individuals using their own strategic means to do so? Repealing both these provisions would win by a landslide. And in fact, there are some statutes which could be read as saying to support this. And if you make this strictly a statutory argument, that case will vanish within a matter of days and so forth. This is not a popular position. And what you really want to do is, remember this, under the Biden years when basically the government not only did not keep people out, it helped them in and then it spread them around the country, ignoring all the requirements that the immigration acts had put into play. And it was voted out of office for that. And so, the brand of the United States should be one which says we are a great country, we will take large numbers of people, we will do it for humanitarian reasons, we will do it for refugees, we will do it for people who have families, we'll do it for people with businesses. But we won't do is turn over the question of who comes into the country to the people who want to come into the country, we shall maintain control. And then you ask, well, where does the federal government get control of immigration, right? It just stole it. There's nothing whatsoever in the original Constitution that makes immigration a federal problem. In fact, the states had enormous apparatuses to do all of these kinds of things, and many of them were overtly racist, particularly in California, particularly in connection with Chinese immigration into the United States. And what happened is, how did it become a federal problem? There was no constitutional amendment. Justice Field, writing in the Chinese exclusion cases, had the following problem. Somebody was, promised a Chinese person the right to come back in when he was given, when he left, and the government reneged on that. And so, then the question, does it have power and the naturalization to deal with this? Answer: no. Because coming in and out of the country is an immigration problem. So, in one sense, he says, every sovereign has inherent in its power the power to control immigration. New constitution. By 1891, there was a huge statute to regulate immigration, right? And then by 1940, when the question came up, we now understood that the original Constitution, quote, unquote, you talk about selective originalism, basically excluded the states from immigration and made it an exclusive federal authority. So, we completely flipped the switch, you talk about selective originalism, that's it.
GR: That's very interesting. So, I'm sure you looked at this in the course of writing your book, but give us some insight as to how does the rest of the world deal with this question, and particularly maybe the Western world? But are there countries that do this birthright citizenship in the way that people are proposing here?
RE: Well, first of all, there's a big distinction. Nobody does it as a constitutional matter. There are some countries which have decided to do it, and this has now blown up. The European situation is extremely instructive about how difficult this problem can come in. Because migration amongst various European powers from one state to another is basically allowed as the movement of goods, and it has created enormous social dislocations as large groups of people come and settle in another country and keep their own folk ways, and are constantly at odds with customs of the other country. Then there's the immigration that comes in from without, places like Denmark and Sweden. The new people do not integrate with the old people, they have very different customs on sex, marriage and everything else. And there's been a huge blowback and a reaction, including limiting the rights, stopping the immigration, and trying to expel many people who don't have it. My view about it is, immigration is extremely difficult when you're doing, talking about goods that come into the country and you sell them. You bring somebody into the country, well, do they have the right to vote? Are they carrying diseases? Do they have a right to a house and have a right to domestic healthcare, etc., etc., etc.? And you cannot solve that problem in a system which prizes open immigration. And so, what's happened is many of the countries, there were a few, that believed in kind of birthright citizenship as a political matter, repealed it, have gone back to the more traditional position. It's, open immigration is not a tenable intellectual theory. And if you are a libertarian, what you have to do is to go back and ask the following question, what does natural law say about immigration and migration? Absolutely nothing. What it does, and this is a Roman lawyer like myself talking, is it gives you a set of principles that you have if you're a citizen of the state, but it doesn't tell you whether a citizen of the state or not. And think of it like a condominium association. Is it forced to take in anybody who agrees to its rules, or does it have the right to select? And the difficulty with the first provision is you have, let's say, 100 units and you have 200 people who meet the rules, you have to take them all in? And the answer is always no. And so, immigration has always been an exclusivity game, and what's happening now is people are trying to make it an entry game under the other rules, and the social services and the political equilibrium can't bear that.
GR: If you've just joined us, you're listening to the Campbell Conversations on WRVO Public Media. I'm Grant Reeher, and I'm talking with Richard Epstein, the author of, "The Myth of Birthright Citizenship: What the 14th Amendment Really says." So, you talked about the Biden administration and its policies, of having relatively open immigration and inviting it. Do you have any concerns now about the way that immigration policies currently being enforced in the country?
RE: I am such a fierce opponent of Donald Trump on virtually everything that he wants to say and do. So, for example, this constant effort to take older people and to say, I want to expel you because you didn't get here, the correct response on that is all this should be prospective. And then there are a bunch of people who work in government facilities, and now he says the immigration laws make it impossible for these people to keep their jobs cleaning the toilets at airports and people who have worked in these positions for 30 years are boosted out. I mean, I can't tell you, I think he is the most ghastly men. Talk about universities, our greatness depends on our ability to get into places. There are many people who've come in who've done terrible things, Trump has been worse. What he should have done is say, you guys are coming in, we're going to punish the malefactors, instead of what he does is he goes after the universities and says, you are responsible. The problem is the universities are not responsible for government grants, their responsibility lies in the original grantor, and every Trump litigation piece ignores the standard procedures to deal with immigrants and everything else. So, what's happened is, the memo on birthright citizenship was actually a very good memo. And the willingness to take out of it anybody who was in this country before the decision was made was a correct decision. It should be incorporated into any final judgment that is entered so that you can't go back on that and so forth. But on everything else, it's become a horror story. That's why Ms. Noem was fired, and that's why it has to do it. So what you have to do is to understand, I'm talking about a whole series of legal discussions and so forth, under the ethos of the 1860s and 1870s, this is a very different world. Now whom you're going to have to keep out if Trump loses, is going to be a huge move to keep out any pregnant woman who wants to come into the United States from China or anywhere else because birthright citizenship under this current regime is now 10% of American births, and that's not a sustainable number. You know, 300,000 people a year getting birthright citizenship and not being an American citizen going overseas. Do they come back as rights, what rights do they have when they have to do special obligations that people born in the United States or who live in the United States don't have to do? We don't know exactly how this will play out. And so that's why, to my mind, this whole thing should be put back into the political process.
GR: So, you want then to make this something that we as a country deliberate on in a political way. Let me ask you this, we only have a couple minutes left, do you have predictions about the decision that the Supreme Court's going to hand down on this?
RE: Well, the argument was one of the worst and most uninformed arguments I've ever heard by the justices, none of whom, for example, even talked about the immigration act. Judging from the way it goes, there are two parts. I think this court wrongly is going to say that anybody sort of washes up on the shores of the United States is an illegal alien. We'll come in, I think that's likely the hold on the Wong Kim Ark, which is, I think, generally misread, different problem. But the boat cases having to deal with people who come over for tourism and have babies, I think there's more anxiety on that. And I do think that will be the 81 and 90, it'd be closer, and I could conceive that one going in the opposite direction for the reasons I just mentioned. You can stop the birthright problem from people coming in illegally by keeping the illegals out. And, you know, the switch between Biden and Trump on that was nothing short of phenomenal, but the other thing you can't.
GR: Let me ask you this as a final question, we've only got a few seconds left. I'm glad I gave you the chance to comment on the Trump administration's policies now, because I think a lot of folks would have made a different assumption about you and where you're coming from on this. I just wanted to ask you this, you're obviously going against the academic and media mainstream and your view here, you talk about this in your book. Very quickly, we only have a couple of seconds, have you encountered any personal costs in working on and publishing this book?
RE: No, because what happens is, the dominant strategy on the other side is to ignore me.
GR: (laughter)
RE: So, I mean, for example, I've done 20 shows on this book. There's not a single liberal commentator who's asked me to speak on their show, under any format, any debate, any style. So, the answer is, the first strategy is if the book does not catch on, it will die in ignominious silence. There was not anybody in the Supreme Court argument who actually referred to the naturalization statutes. They all turned blind and there wasn't a single person, including the chief Justice, who understood what was going on. Because they never did enough hard work.
GR: Well, we'll have to leave it there. Our show is deliberately nonpartisan, and so that is why you are on it. That was Richard Epstein, and again, his new book is titled "The Myth of Birthright Citizenship: What the 14th Amendment Really Says" And I think you can tell from our conversation here, it's a very, very complicated question and a fascinating one historically. Professor Epstein, thanks so much for taking the time to talk with me.
RE: Thank you.
GR: You've been listening to the Campbell Conversations on WRVO Public Media, conversations in the public interest.
