The Post & Email Interviews Atty. Mario Apuzzo on the 14th Amendment, Part 2

“THERE’S NEVER A FINAL WORD”

by Sharon Rondeau

(Aug. 28, 2018) — On Monday, The Post & Email published Part 1 of an interview with New Jersey attorney Mario Apuzzo focusing on the ongoing debate about the meaning of the 14th Amendment’s citizenship provision.

Apuzzo has taken on complex citizenship cases in his decades-long career and provided us with an in-depth look at not only the origins of the amendment, but also his view of the reasons for today’s varying interpretations of Congress’s intent at the time.

Our main question, which recurred throughout the hour-long interview, focused on the meaning of the words “subject to the jurisdiction thereof” in the first sentence of Section 1 of the amendment.  Those words, and the question as to who should be considered a U.S. citizen today, continue to be vigorously debated.

Apuzzo’s  response was that different interpretations of the clause and paragraph as a whole arise from “politics.”  “The question of citizenship is absolutely loaded with policy and politics,” he said.

We contacted Apuzzo after reading an article at Salon.com which vehemently refuted a position recently discussed by Fox News Channel host Tucker Carlson with guest Victor Davis Hanson that the president has the authority to issue an executive order stating his own interpretation of the 14th Amendment. Hanson suggested to Carlson that any clarification Trump might issue would restrict what has been a decades-long policy of granting U.S. citizenship to all children born in the U.S., regardless of the status of their parents.

An exception in U.S. law for children born in the U.S. to parents who are foreign diplomats has generally not been contested, although a 2011 report from the Center for Immigration Studies (CIS) states that such children are being assigned Social Security numbers and provided with U.S. birth certificates.  CIS posited that the practice served to create a “’super citizen’ who is above the law” due to diplomatic immunity.

Carlson’s August 15 discussion with Hanson was apparently initiated by a July 18, 2018 editorial in The Washington Post by former Trump National Security Council spokesman Mark Anton, now a professor at Hillsdale College in Michigan. In his column, Anton argued that “birthright citizenship” for the children of illegals would not have been even remotely contemplated by Congress, which ultimately ratified the 14th Amendment in 1868.  Anton wrote, in part:

The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.

Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment. The purpose of that amendment was to resolve the question of citizenship for newly freed slaves. Following the Civil War, some in the South insisted that states had the right to deny citizenship to freedmen. In support, they cited 1857’s disgraceful Dred Scott v. Sandford decision, which held that no black American could ever be a citizen of the United States.

Conversely, former Reagan administration official Linda Chavez wrote in a responsive column at The Hill that Anton’s contention is erroneous and amounts to “clever propaganda.”  Chavez’s article begins:

With President Trump’s unprecedented rhetorical and policy assault on immigrants, opponents of the 14th Amendment to the Constitution, which grants birthright citizenship, have come out of their caves, seeing this as their best opportunity to repeal this longstanding right.

Witness the recent Washington Post op-ed by Michael Anton, former Trump administration official and current Hillsdale college lecturer. He writes, “The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity…”

His op-ed is part of a coordinated effort to narrow the definition of U.S. citizenship and deny the birthright of millions of Americans, including not only the estimated 4.5 million children born to at least one parent who resides illegally in the country but also to millions more whose parents reside here legally as permanent legal residents, students, and temporary visa holders.

Regarding the stark differences in viewpoint as to the meaning of the clause “subject to the jurisdiction thereof,” Apuzzo said:

They try to find a motive for why you’re arguing. The Salon article takes aim at “the right,” the “nativists” — they always have to put a label on you.  So right away, you have the question of motive or demographics.  It’s always driven by politics — whether you’re a “nativist,” a “birther,” a right-winger, a leftist, a socialist…

Some people attacked Rudy Giuliani when he said, “Truth isn’t truth,” but I knew what he meant.  Of course truth is truth, but he meant in the sense that when you have a discussion going on and everybody claims they have the truth and then you decide that something is true, how did you decide? Was it because you had more votes, more political power, more military power?

So “subject to the jurisdiction thereof” means whatever your politics are, whatever result you want; that’s what it means. Of course, if you want to look at it very simply, if people are in my territory, they’re subject to my jurisdiction.  If you look at the debates, they talk about “in the sense of this amendment.”

In immigration law, the phrase “for purposes of this section” is used frequently.  Even as far as what naturalization is, they’ll define it and say, “For purposes of this section, naturalization is when you obtain citizenship after birth.”  But that’s only for purposes of that section.  So naturalization is not just about citizenship after birth; you could be naturalized at birth.  The Supreme Court has said that. If you’re born out of the country and you become a citizen at birth, if you apply the definition of naturalization under the immigration laws, that would not be naturalization.  But the Supreme Court said, “No, no, no, that’s naturalization” because you need a statute to make you a citizen.

The point I’m making is that definitions are made from context.  That’s what happened with “subject to the jurisdiction.”  They said, “In the sense of the Constitution, the Indians are not subject to the jurisdiction in the context of the 14th Amendment.” But if you want to go outside the 14th Amendment, of course they’re “subject to the jurisdiction;” they’re here.  But some senators said we could not enforce our laws against them, while others said, “Of course, if they commit a crime, we can enforce our laws.”  You can see how vague the whole thing is.

Of the general understanding of “citizenship,” Apuzzo explained:

Natural law, “The Law of Nations,” says a nation is sovereign, which means it can admit or exclude people for the good of the whole, and your representatives decide who’s good and who’s bad.  That’s your sovereign right. That changes over time.  You always have to consider the context and the times that you live in, but you have to protect yourself in the present.  You can’t go back to the past and say, “Oh, we didn’t need that,” or into the future and say, “Oh, well, that’s going to be OK.”  You’re alive now; people are alive now; you have to protect them now. Whatever happened in the past or might happen in the future doesn’t matter.

Of the question of whether or not children born in the United States to parents who entered illegally are to be considered “citizens” under the 14th Amendment, Apuzzo responded:

It’s a fair discussion, very fair, because again, in Wong Kim Ark there was no question about his parents being here illegally, but rather, “Should he be a citizen?”  His parents were “domiciled” here; they were working in California. They weren’t foreign diplomats, which makes it easier, although not as easy as the American Indians.  That issue is really complicated because they couldn’t even agree in Congress whether or not Indians should be citizens.  Some of the senators agreed with having to put in “and Indians not taxed” but said that “Indians should be citizens.”  Some of the others were saying, “No, they’re not citizens.”

The Post & Email:  But Indians are their own nations, correct?

Atty. Apuzzo:  Yes, but it gets more complicated.  Senator Trumbull said, “Oh, but we’re only talking about the Indians in the territories, the ones who roam the plains, the wild ones.  The ‘civilized’ ones are OK.”

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The Post & Email: Do you agree with Victor Davis Hanson that President Trump — or any president — could issue a “clarification” of the 14th Amendment?

Atty. Apuzzo:  Yes, he can do that.  Trump could say in an executive order, “This is my interpretation of the 14th Amendment.” With this question of “subject to the jurisdiction,” is he violating the law by stating his position? He’s not violating the law because there’s no Supreme Court precedent saying that if you’re here illegally and you give birth, that child is a citizen. So if he did that, he wouldn’t be violating anything. It’s a fair interpretation given the current context when you have illegals here giving birth to children. The question is, “Should the nation accept those children as citizens?”  So I think it would be fine if Trump signed an executive order and it went to the Supreme Court and they issued a decision.

The Post & Email:  Would that equate to Obama’s executive action creating DACA? Is it the same thing?

Atty. Apuzzo:  Actually, DACA is much worse. Congress has laws on the books which say that if you’re here illegally, you’re subject to deportation (or “removal,” as it’s now called). But Obama’s executive order said, “Oh, no, we’re not going to do that.” The law is cleaner; it says if you’re here illegally and have no status, you have to go back to your country of origin.

The child is not going to be stateless; he or she would take on the citizenship of the parents. Also, in regard to separation of families, the parents have no business staying here. So there’s no evil going on; there’s no harm being done. The parents have a country.

The other questions about asylum are governed by a different law. If they qualify for asylum because of political, religious, or some other kind of persecution, they qualify to be here because that’s what the law says. The laws of our nation say they can be here. If they’re here under those circumstances and give birth to children, I can see the children becoming citizens because they’ve become part of our nation.

It doesn’t matter where they come from; if they qualify under our laws, then of course if their children are born here, I don’t see a problem with making them citizens.  You want the children to grow, attach to the nation, be part of the community, go to school, and love their country. That’s how societies are built.  But if the parents are here under other circumstances, I think giving citizenship to the children creates more problems than it solves.  It creates anger within the children; they become angry at the nation where their parents have to live in the shadows, and they start to blame the nation for all of the problems they experience.

The Post & Email:  Can Congress clarify “subject to the jurisdiction thereof” to settle this question?

Atty. Apuzzo:  Under the 14th Amendment’s Section 5, it says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” There, they can actually define what “subject to the jurisdiction thereof” means in the context.  They could pass legislation. Somebody could say, though, “You can’t to that; you’re trying to amend the Constitution.”  Then the Supreme Court would have to look at it.

Also, in Article I, it says that Congress has the power to pass legislation defining different things.  Take the American Indians:  it was 1924 when they made them citizens with a statute.  If you go back to the 14th Amendment, it says they’re not citizens, but if that’s what the 14th Amendment says, then the Congress acted “illegally.”  But nobody ever says, “They can’t do that.”  If you go back to the 14th amendment, the whole debate was about how Indians were not citizens. So if the Constitution says American Indians are not citizens, how dare the Congress pass a statute saying they’re citizens?

If you look at Article I, Section 8, clause 4, it says that Congress has the power “to establish an uniform Rule of Naturalization” throughout the United States. That gives them a lot of power over naturalization.  The question is, “What’s naturalization?”  If you look at the 14th Amendment, that naturalized people.  If you read the debates it talks about “Indians not taxed.” But if the state decided to tax you, then the state has actually naturalized that Indian.  So now you’ve become a citizen. So the argument is that the state was naturalizing people.

The 14th Amendment was really a naturalization of freedmen, of freed slaves who were not citizens.  The Civil Rights Act of 1866 naturalized them.  They were naturalized, even though they were born here.  So then if Congress has the power of naturalization, they can surely tell us what “subject to the jurisdiction thereof” means.  They can do it under Article I and under Section 5 of the 14th Amendment which says, “Congress shall have the power to enforce…”

The Post & Email:  Is the Supreme Court the final word on any “appropriate legislation” Congress might pass?

Atty. Apuzzo:  Here’s the philosophical answer to your question:  There is no final word.  It’s a circle.  It goes around and around and around.  How quickly it goes around is a different question.  It could go around in just one year, or 200 years could pass, or 500 years could pass. There’s never a final word.  There are always new people in office, new citizens with different ideas.  The way our Constitution works is that it’s a circle, because even if the Supreme Court rules, the people can pass a constitutional amendment. It happened with the Dred Scott case, when the Supreme Court said that freed slaves are not citizens.  So what did they do?  They passed a statute which was questionably constitutional, the Civil Rights Act of 1866.  They say that was one of the reasons they passed the 14th Amendment, but we don’t know.  But Dred Scott was then gone.  So now, even though they passed the 14th Amendment, we’re attacking it, so to speak.  It goes to the Supreme Court again; they rule, then there’s another amendment.  There’s never a final word.

The only finality is that whichever institution does something, it will be good for a certain amount of years.  So it might be good for my whole lifetime or three lifetimes.  But philosophically, it’s never going to be the end.  How long does it last?  If the Supreme Court does something, it’s going to last for a pretty long time.  But times can change.

We’ve been arguing this issue of what a citizen is for centuries. I think it comes down to context and politics; we have to make a policy decision.  Citizenship has a tremendous meaning for a republic:  who is able to assert political power. It’s like shareholders of a corporation; how they vote determines the life or death of that corporation.  That’s what we’re talking about here:  the shareholders of a corporation.  So you’re talking about your survival, self-preservation as Vattel put it so well. In fact, the first duty of a nation is self-preservation.  It’s the duty of every person.  The nation is really a reflection of a person.  What is your first duty?

If you look at the safety rules for airplanes, it says the oxygen mask will come down.  And what do they say?  “Make sure you put it on yourself first before you try to help others.”  That’s a powerful metaphor.  You can’t help others if you’re dying yourself. Your first duty is to yourself, to preserve yourself; then you can preserve others.

So the nation has to preserve itself.  Who becomes a member of that society:  that’s really the issue here.  Who are going to be our shareholders?  Who will vote and continue the values and traditions of America as a constitutional republic? Are we a nation of laws or not?  That’s really there; we’re supposed to be a nation of laws, but we have people who just come in and they don’t care.  And then they’re going to protest that they have rights…

Either we have laws or we don’t.  If we don’t like the laws, we should change them.  By changing them, we’re still a nation of laws.  But when you start to parse words and play politics, people lose faith, and when the people lose faith, you have a big problem on your hands. It’s like consumers; if they don’t have confidence, the economy crashes.  The power is in the people.

Can you imagine the force every day when people go out and buy a cup of coffee?  Economically, think of what they’re doing for the nation.  Think about when they go to work and they’re producing:  the farmers are farming, the scientists are studying…the people are really what make the nation.  So you really have to address that, and you can’t be playing fast and loose with the people, because once you lose the people, you lose the nation.