Victor Davis Hanson: The Legal Reality of Birthright Citizenship and the Supreme Court’s Defection

Editor’s note: This is a lightly edited transcript of today’s edition of “Victor Davis Hanson: In His Own Words” from Daily Signal Senior Contributor Victor Davis Hanson. Subscribe to Victor Davis Hanson’s own YouTube channel to watch past episodes.

Sami Winc: Your thoughts on this birthright citizenship decision by the Supreme Court?

Victor Davis Hanson: Well, what the minority of [Clarence] Thomas, [Samuel] Alito, [Neil] Gorsuch, and, to a certain extent, [Brett] Kavanaugh—he had a qualified dissent—was that they are originalists, and they said if you look at the Fourteenth Amendment, it came in the aftermath of the Civil War and the increasing pacification of Native American tribes.

So what are we going to do with people who were traditionally not considered citizens of the United States? And so we said if you were a former slave and your parents were here, then you were a citizen; i.e., you didn’t just come in.

A court case sometime later reinterpreted that as anybody born here could be a citizen, but it emphasized the original wording of the amendment that says, “and not subject to the jurisdiction of another country.” But, in fact, everybody knows that if you come in here and you’re a foreign national, you are subject to the jurisdiction of another country.

What do I mean by that? I mean if Mexico has an extradition or a hold on somebody and they come in here, and they come to us and say, “We’re going to extradite him back to Mexico as a Mexican national,” we say, “Okay.” If Mexico says Victor is going to be extradited, I’m not subject to their jurisdiction.

And so, to simplify things, every single person knows three things about this.

Number one, it was never the intent—never the intent—of the drafters of the Fourteenth Amendment to give automatic birthright citizenship.

Number two, everyone knows it is widely abused and not sustainable. People are flying in from China in their third trimester, having a baby, and flying back with the baby so that that baby—who might not know English or anything about the United States—at any time in his or her life, if things get bad in China, can come over here or can come over here and sponsor their children. The same is true south of the border.

So everybody knows it’s an unsustainable, crazy idea that has greenlighted a very pernicious habit of coming here in your third [trimester].

Three, everybody knows while there are a number of nations that technically allow it, usually they require both parents—we don’t—to be citizens, or at least one.

So if you come into the United States and you’re born on this—you know, most countries, I think the majority, require either one parent or two to be a citizen.

And if you’re born in France, you can only be a French citizen if one of your parents is French. Some require two, but it’s not the norm. It’s not that it doesn’t exist anywhere else, but it’s not the norm for a person to be born here to two foreign nationals.

Born here in the United States—or anywhere—it’s not the norm.

A lot of people say, well, a lot of Latin American countries are doing it. But, yes, it’s still not the norm.

So just to recap: Everybody knows it was not the intent of the drafters of the Fourteenth Amendment to have this “anchor baby” malady we have.

Number two, we know it’s not sustainable because we’re handing out citizenship to people—we have no idea who they are. They have no affinity with the United States. The parents don’t. They can leave.

Number three, most countries—not all, but most countries—understand that and don’t do it.

So then the question is why, in a conservative court with a 6-3 majority, would you have two justices defect—Amy Coney Barrett, and John Roberts?

That, I think, is a political decision. I think that they understand that this is, right up with the Dobbs case, one of the most controversial cases that would radically change things immediately.

It would tell the Dreamers, for example—not all of the 20 million—but it would say to some Dreamers who are now in their 30s or 40s, you came when you were two, and so you’re not a citizen, but you were born here.

You’re not a citizen. You think you’re a citizen. You’re not.

I shouldn’t say Dreamers. I should say a lot of immigrants right now, as we’re talking, have parents who are either illegal or legal aliens, and they will be born immediately, and now they’re going to be told, “You’re not a citizen. You have no right to be here unless you apply for a green card or something.”

So I think the court, like in the case of abortion, they could outsource it to the states so they could get the heat off them. They can just say, “You know what? We’re not banning or we’re not approving abortion. Under our federalist system, we’re allowing regional control.”

They can’t with this. It’s going to be a fundamental change, and we have 53 million immigrants here, and we have a million coming every year, and the Democratic Party would go ballistic.

So I’m just conjecturing. I have no evidence, but I think that in their way of looking at saving the court’s reputation—not allowing it to be viewed as biased, perception-wise—they were going to rule in favor of the left on this issue, and they were going to rule in favor of the right on the trans issue and say that states, locales, regions, and organizations have a perfect right to say if you’re not a biological female, you’re not going to compete in female sports.

And that was controversial.

The problem with all of this is that’s not the purpose of the Supreme Court: to adjudicate what’s politically feasible or tolerable.

Number two, [Elena] Kagan, Ketanji Brown Jackson, and [Sonia] Sotomayor—they don’t defect. They’re lockstep.

They would be dead in Democratic circles. They wouldn’t be able to go speak. The left—the socialist, the Democratic-socialist-communists now—they’re intolerant.

They would not, if Sotomayor or Kagan voted for this, all their speaking invitations would be withdrawn. They would be persona non grata.

And so they stay that way.

They’re enforced by—the Democrats enforce cohesiveness and unanimity.

We don’t on the conservative side. So we get these constant defections.

And we’re always told that they’re to save the court or the reputation of the Supreme Court or not to be partisan. But this is not a partisan issue. This is something that affects the well-being of the United States.

Then they criticized Trump—I think Kavanaugh did, but others on the left—and said that he had issued an executive order stopping it, which precipitated the lawsuit.

And he can’t do that.

And they cited evidence where you have constitutional edicts in the Constitution—or by way of an amendment—that cannot be overturned by a presidential order. They need an act of Congress or maybe even another amendment, which is about impossible because you require three-quarters of the state legislatures and, I think, two-thirds of Congress.

But what they’re missing here, I think, is when they are saying you want to change the law, you have to bring either an amendment or maybe an act of Congress.

And the conservatives are saying we don’t want to change the law—not at all. We want you to obey what is written in the law.

The law says that if you were born in the United States and you’re subject to the jurisdiction of another country, you’re not going to be a citizen.

And everybody knows that if you come across the southern border from Venezuela and you’re here and Mr. Chávez or Mr. Maduro—or whoever the government is—says, “I want you extradited because you’re a citizen,” that will be adjudicated.

Nobody will doubt that.

And so what I’m getting at is the conservatives were saying, well, we don’t need an amendment. We just need an act of Congress to enforce the law or something like that.

The other thing is, very quickly, it wasn’t too handled by conservatives. All I think they should have said is we just want reciprocity.

If China allows somebody to be born in China to be an automatic citizen of the People’s Republic, OK, maybe we’ll extend the same.

What they’re saying is we have been taking on tariffs, technological appropriation, all of these issues, and we’re taking on birthright citizenship.

So any country that does not allow birthright citizenship whose people come over here and take advantage of our allowance shouldn’t do that.

If they did something like that and broadcast that fact, I think they would have gotten a lot more support.

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