Donald Trump may have a new favorite federal judge.
Speaking at a law school conference on Friday, a long-serving federal appellate judge offered a ray of hope to nativists who want to strip citizenship from the children of undocumented immigrants. The Fourteenth Amendment provides that “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.” Yet, in remarks delivered at Loyola University Chicago’s law school, Judge Richard Posner suggested that judges may not need to follow what these words actually say.
Posner claimed that judges do not need to read the Constitution to guarantee citizenship to all persons born in the United States and subject to the jurisdiction thereof, and he cited a particular example of individuals who he believes may not be subject to the Constitution’s text, according to a partial transcription of Posner’s remarks by law professor Josh Blackman.
What about these foreigners [who] come here — pregnancy tourists — who want to have their child born in the United States, so he will have refuge if things go bad in his country. But I don’t think that is a necessary interpretation. I’m perfectly happy with these people, I don’t care. Doesn’t bother me in the slightest. But I don’t think it is required by law. I think the Supreme Court would say, what they meant was that the children of the former slaves would be citizens. That is what they meant. They didn’t want a southern state to say “no more slaves, but children of slaves, citizens, no.” That’s what they were worried about. They weren’t worried about tourist pregnancies.
Though Posner only spoke directly to what he labeled “tourist pregnancies” — a minor issue that encompasses only a tiny fraction of all infants born in the United States — his reasoning that the framers of the Constitution’s citizenship provision were really only concerned about the children of former slaves could sweep broadly to impact far more children. Approximately 350,000 children were born to at least one undocumented parent in 2009 alone. Yet many Republican politicians, including presidential frontrunner Donald Trump, want to strip these children of their citizenship as well. If Posner’s proposed reading of the Constitution were taken seriously, that would allow the government to deny citizenship to such children.
Judge Posner’s proposed reading, however, cannot be squared with the text of the Constitution or its history. First of all, whatever the framers may have intended when they drafted this provision, judges are bound by the text of the Constitution, and the text of this particular provision sweeps broadly, applying to “all persons born or naturalized in the United States” and “subject to the jurisdiction thereof.” The word “jurisdiction” refers to a government or government body’s power to exercise sovereign authority over an individual. So if the children of undocumented immigrants (or, for that matter, children of so-called pregnancy tourists) were not “subject to the jurisdiction” of the United States, that would mean that they were free to ignore federal law. This is a very limited category that applies primarily to the children of ambassadors and other foreign nationals with diplomatic immunity.
Posner’s historical claim that the framers of the Fourteenth Amendment were concerned only with the children of slaves, moreover, is not accurate. Though protecting freed slaves was their primary concern, debates in the post-Civil War Congress reveal that lawmakers were quite aware that birthright citizenship would also extend to immigrant populations such as “the Chinese population in California and the West, and the Gypsy or Roma communities in eastern states such as Pennsylvania.” Indeed, white supremacist President Andrew Johnson attempted to veto a precursor to the Fourteenth Amendment because he recognized that it would extend citizenship broadly to the children of ethnic groups he viewed as undesirable.
In fairness, Posner’s idiosyncratic notion about birthright citizenship is unlikely to be followed by other judges. Though Posner, a Reagan appointee, was once viewed as very much on the vanguard of judicial conservatism, his views have grown increasingly heterodox in recent years. During his remarks at Loyola, Posner offered a strikingly candid description of how he decides cases:
My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense, sensical solution.
There are no doubt other judges who take a similarly dismissive attitude towards legal doctrines and precedents, but few of them would admit it so brazenly — or even admit it to themselves. If Judge Posner is trying to win converts to his views among his fellow judges, this admission is a terrible way to do so.
Nevertheless, Posner’s claim that the Fourteenth Amendment’s text is far more flexible than its words indicate could find a following among political actors eager to limit the rights of immigrants and their children. Trump, for one, has claimed that “many of the great scholars say that anchor babies are not covered” by birthright citizenship. This is, at best, an exaggeration. But Trump does seem to have Judge Posner on his side.