During an appearance on The Record with Greta Van Susteren on Newsmax TV, Harvard Law Professor Emeritus Alan Dershowitz shared his insights on the issue of universal birthright citizenship. The concept, which grants automatic citizenship to anyone born on U.S. soil, has been a topic of debate for years. Dershowitz expressed his firm opinion that birthright citizenship, as outlined in the 14th Amendment, is “foolish” and one of the “least persuasive parts” of the U.S. Constitution. However, despite his critique, Dershowitz acknowledged the difficulty of changing such a provision without a formal constitutional amendment.
Constitutional Challenge to Birthright Citizenship
Dershowitz’s comments centered on the constitutionality of birthright citizenship, especially in light of former President Donald Trump’s attempt to address the issue via executive order. According to Dershowitz, the idea that a person born on U.S. soil is automatically a citizen is problematic. He argued that such an individual might have no real connection to the country, using the example of a mother who gives birth while briefly visiting the U.S. and returns to her home country shortly after. Despite this lack of long-term ties to the country, the child would still qualify for citizenship under the current interpretation of the 14th Amendment.
In response to whether the President has the authority to alter this policy through an executive order, Dershowitz firmly stated that it is not constitutional. He explained that while the 14th Amendment grants citizenship to all individuals born in the United States and subject to its jurisdiction, it does not cover those who leave the country soon after birth and have no lasting connection to the U.S. He suggested that changes to this policy would require new legislation, not just an executive announcement.
Legislative vs. Executive Action
Dershowitz emphasized that any substantial change to birthright citizenship should come from Congress, not the President. He noted that the executive order approach, which President Trump attempted, would be “the weakest case” for altering the law. A more legitimate path would involve Congress passing legislation that specifies conditions under which a person born in the U.S. would not be considered subject to its jurisdiction, such as if the child were to leave the country shortly after birth and never return.
Legal Challenges and Constitutional Amendments
While Dershowitz criticized the executive action as unconstitutional, he also pointed out that there would likely be legal challenges to any such order. These challenges could come from various individuals or entities, including state attorneys general, though there may be questions regarding their standing to bring such cases. Ultimately, Dershowitz acknowledged that the legal system, particularly the courts, would have the final say on whether such an executive order could stand.
Frequently Asked Questions
What is birthright citizenship?
Birthright citizenship is the practice of granting automatic citizenship to anyone born on U.S. soil, as guaranteed by the 14th Amendment of the U.S. Constitution.
Can the President change birthright citizenship through an executive order?
According to Alan Dershowitz, no, the President cannot change birthright citizenship through an executive order. He argued that such an action would be unconstitutional without legislation or a constitutional amendment.
What would it take to change birthright citizenship?
Dershowitz believes that changing birthright citizenship would require either a constitutional amendment or new legislation passed by Congress.
Why does Dershowitz believe birthright citizenship is “foolish”?
Dershowitz argues that birthright citizenship is impractical, particularly in cases where individuals born in the U.S. have no lasting connection to the country, such as children of tourists who return to their home countries shortly after birth.
Conclusion
While Alan Dershowitz critiqued the concept of universal birthright citizenship as a flawed part of the Constitution, he acknowledged the significant legal hurdles in changing it. The U.S. Constitution’s clear language on birthright citizenship makes it challenging to alter without a formal amendment or legislative action. As the debate continues, it is clear that any substantial change would require a broader legal process than an executive order. For now, birthright citizenship remains a contentious yet firmly entrenched principle in American law.