Donald Trump says he wants a “revolution of common sense.” If he means it, he will abandon his unilateral attempt to cancel birthright citizenship, which the 14th Amendment to the U.S. Constitution, ratified in 1868, expressly acknowledges. The opening words of that amendment have a common-sense meaning that requires grotesque mental contortions to evade.
Opponents of birthright citizenship will seek refuge in the amendment’s legislative history and case law, but I don’t see how that trumps the plain meaning of words. The amendment says that if you were born in the United States, you are a citizen unless a parent was a foreign diplomat. It’s worth remembering that the debate over birthright citizenship is merely one part of the all-out assault on the freedom to move and work that Trump is spearheading. Since violations of this freedom affect foreigners as well as Americans, the controversy is worth paying attention to.
The Constitution does not instruct its readers on how to interpret its clauses. Common sense is called for, and no one applied common sense to the law more clearly than the 19th-century libertarian and constitutional scholar Lysander Spooner. Spooner was also an abolitionist during the slave era. He insisted, contrary to his fellow abolitionists, that the constitutional text did not sanction slavery. He spelled this out in The Unconstitutionality of Slavery.
This is an article about the very strict libertarian viewpoint on Trumps ability to remove illegal aliens from the country and deny them citizenship. It is one of those: “The perfect is the enemy of the good” type arguments. It also denies the debates in the Legislature over who was to be given birthright citizenship. You cannot interpret the words without the full context of the debates surrounding them. What exactly were those in the various legislatures saying about who should get birthright citizenship and who shouldn’t? That would be the determining factor in the quest for true meaning, wouldn’t it?