All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States....
—U.S. Constitution, Amendment XIV
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.
Spooner insisted that the language of a constitution must not be interpreted contrary to the very purpose of the document itself unless the language was so unambiguous as to preclude any other interpretation. In the American case, a pro-liberty reading is required if it is not expressly ruled out. He proceeded to show that the purportedly pro-slave language of the Constitution had to be construed in a way that was consistent with individual natural rights and natural law because the purported aim of the Constitution was to protect natural rights. Nowhere in the original Constitution were the words slave or slavery used. He wasn't arguing that the framers did not intend to protect slavery. Rather, his point was that no one was bound by what the framers meant but did not say. That makes perfect sense. If those men wanted to say something, they should have said it. What stopped them? We have no obligation to perpetuate injustice.
"[I]n the interpretation of all statutes and constitutions," Spooner wrote, "the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed 'strictly' in favor of natural right." (Spooner's emphasis.)
Also: "The legal rules of interpretation, heretofore laid down, imperatively require this preference of the right, over the wrong, in all cases where a word is susceptible of different meanings."
And "[A]n innocent meaning must be given to all words that are susceptible of it."
Surely, Spooner would have applied this principle to the opening words of the 14th Amendment. It's unclear what meaning, other than the natural-right meaning, could possibly be given to those words. Some will argue that the post-Civil War amendment was only meant to recognize the citizenship of the freed slaves. So why didn't they say that? We are not bound by a meaning that contradicts natural law if the text can be read otherwise. .
How do we know the plain meaning is consistent with natural rights and natural law? We know because only under the plain meaning will the state leave people alone who have violated no one's rights. That was the original American way. If you did not aggress against persons or property, you were unlikely to come into contact with government officers.
If Trump has his way, people who have harmed no innocent persons or property could be rounded up by armed government agents and exiled. That would violate those people's rights. Therefore, the pro-liberty meaning is the common-sense meaning and must prevail if the Constitution is to fulfill what we are told is its purpose: "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity"
As Spooner put it, "[I]n order that the contract of government may be valid and lawful, it must purport to authorize nothing inconsistent with natural justice, and men’s natural rights. It cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government—which is but an association of individuals—than to a single individual."
The case presented here might seem to justify no more than legal residency. What about citizenship? To take that step, one need only consider that a legal resident is subject to the government's power to tax and regulate. Since his bid for exemption from U.S. government impositions would not be recognized, we are forced to the second-best disposition, namely, that the legal resident ought to have a say—as small as it is—over government policy, that is, the privileges and immunities of citizens. Those who are concerned that this could bring growth in an already overgrown government should turn their attention directly to the size and scope of the state, rather than seeking to limit individual rights. Besides, the offspring of American citizens have not exactly been genetically or culturally predisposed against big government, have they? Immigrants are not responsible for America's falling score on the world indices of freedom.
Ironically, anti-immigration action is what would make the government bigger and more intrusive. If you ask the state to "protect" the culture from foreigners, don't be surprised when you wake up in bed with a monster.
The Constitution has serious basic flaws, as Spooner himself would later elaborate in "The Constitution of No Authority," but as long as it's the supreme law of the land, liberty's advocates are obliged to push the interpretation that most constrains the state and expands freedom.
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