"The illegal we do immediately. The unconstitutional takes a little longer."
The Constitution has had a busy week. Irony was in the air, thick as mosquitoes on a warm Syracuse evening. People who thought they'd packed the Court, finally to get the "conservative majority" they craved, the outcomes they'd worked so hard to anticipate... Let's start from the easiest part.
The headline was inferential. President Trump had "signaled" he might use an executive order to rescind so-called "birthright citizenship." First - how, exactly, does the Twitterrer-in-Chief signal? Usually, he comes right out and says what is on his mind. Unfiltered. For whatever it's worth. President Trump is learned the art of notion floating an idea? I'll be damned.
Of course, there was an immediate hue and cry. Dude, the...you know...Constitution!
Well, you know, the 14th Amendment. It says, rather clearly:
Section 1. 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.
If I've read it once in cases, I've read it a hundred and forty-seven times. "In matters of constitutional interpretation, we begin with the text itself." Begin?
It is a mistake to think that the Supreme Court... Hang on, let's do something quick, before the actual substance stuff. The Supremes - sometimes referred to awkwardly as SCOTUS, which doesn't take any less time to type, really - deal in "cases and controversies." Some States (and this is their option) allow advisory opinions on laws that haven't really become a thing, yet. "Hey, [State's Highest Court], what do you think of the law we might pass?"
The US Constitution requires that an actual lawsuit actually be in play. Sometimes, as in Plessy (separate but equal) and Griswold (contraception), court cases are ginned up to cause a case to be brought. The "Scopes Monkey Trial" started when a teacher was arrested in a prearranged agreement between him and the local government so that a case could go forward - a real case and controversy existed.
So, the Supreme Court can do no more than chuckle over their muffins during morning get togethers about President Trump's hint. That is, until the mild-looking guy from Hawaii, or the bearded imbecile from... Washington or Oregon - one of those states where they let weird dudes in black hoodies direct traffic - when one of them issues an injunction, there is much high dudgeon on both sides and the President ultimately gets his way. Okay, maybe it was California.
What does "subject to the jurisdiction thereof" mean? Not a clue. I've read a few essays by people who think they know, but... Let's think about this.
Emma and Noah, a young couple from Thistletown, Ontario, pop across the border to see their beloved Maple Leafs play Buffalo's Sabres. She is eight months pregnant, but due in thirty days. Both are Canadian citizens. Of course, if they commit a crime, or make a wrong turn in violation of New York traffic laws they'll see how quickly they become "subject to the jurisdiction thereof" by some Buffalo cop looking for something to do.
Toronto Goalie Nikita Zaitsev gives up a late, soft goal. The crowd goes nuts. Emma detects an unquenchable flow of... You get the idea. Several hours later Carly Yvonne is born at Buffalo General, a happy and healthy six pound... American?
I've been a lawyer. Isn't there something that tells me whether the world has welcomed a new American, or a Canadian who will soon be back in Ontario learning how to say "eh?" after every third sentence?
We're soon going to find out. And, maybe it's time we did.
UPDATED: Andrew McCarthy has a very interesting take on "Subject to the jurisdiction" and an originalist view of the 14th Amendment. He ends it with an entirely reasonable policy statement.