This afternoon on Fox News' America Live, host Megyn Kelly spoke with Peter Johnson Jr. about the current legal challenges to birthright citizenship, as established by the 14th Amendment, and gave a wildly dishonest reading of the law and precedent to suggest that conferring citizenship based on birthplace is unconstitutional.
The segment is clipped below.
The 14th Amendment states:
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.
Johnson said that the "constitutional argument today that's being made is that the folks who are illegal immigrants, undocumented aliens, are not subject to the jurisdiction of the United States as defined in the 14th Amendment." Kelly said there's a "shocking dearth of Supreme Court precedent on this. ... There's not a lot of cases out there that take up the issue about what the 14th Amendment was meant to speak to." They briefly discussed the 1898 case United States v. Wong Kim Ark, which held that a child born in the U.S. to parents who were "subjects of the Emperor of China" was, in fact, a U.S. citizen. Johnson, however, dismissed that ruling as "political," as opposed to "constitutional," and a "weak" precedent.
What Johnson and Kelly conspicuously neglected to note is that the Supreme Court much more recently took up the question and found that, yes, undocumented immigrants (and their children) are subject to the jurisdiction of the United States by simple virtue of the fact that they are in the United States. In the 1982 case Plyler v. Doe, the court ruled 5-4 that the state of Texas could not deny to the children of undocumented immigrants public school services offered to the children of citizens. Justice William Brennan affirmed the findings of the 1898 case and wrote in the majority opinion:
Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish.
Notably, in the dissenting opinion, Justice Warren Burger agreed that persons within the territorial boundaries of a state -- regardless of their immigration status -- were indeed within the jurisdiction of that state: "I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state."
This argument was made in a recent Wall Street Journal op-ed by James C. Ho, the former Texas solicitor general, clerk to Justice Clarence Thomas, and chief counsel to Sen. John Cornyn (R-TX). In a 2009 paper for the Immigration Policy Center, Ho observed:
The Court continues to abide by this understanding to this day. In INS v. Rios-Pineda (1985), Justice White noted for a unanimous Court that the "respondent wife [an illegal alien] had given birth to a child, who, born in the United States, was a citizen of this country." And in Hamdi v. Rumsfeld (2004), the plurality opinion noted that alleged Taliban fighter Yaser Hamdi was "[b]orn in Louisiana" and thus "is an American citizen," despite objections by various amici that, at the time of his birth, his parents were aliens in the U.S. on temporary work visas.
None of this, however, was mentioned on Fox News, as Kelly and Johnson led their viewers to believe that the question of birthright citizenship remains open, even though it has been settled and reaffirmed by the courts for over a century.