How to put citizenship back in the census

By David B. Rivkin Jr. and Gilson B. Gray

5 July 2019 in the Wall Street Journal

The Trump administration said Wednesday it will attempt to add a citizenship question on the 2020 census while complying with the Supreme Court’s ruling in Department of Commerce v. New York. Five justices held that the Census Act allows the question, but a separate five-justice majority found the rulemaking that added the question was procedurally deficient. There is a way forward. The Constitution itself requires the collection of citizenship information.

Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such . . . citizens shall bear to the whole number of . . . citizens . . . in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.

The 14th Amendment was adopted in 1868, and this provision meant to secure the voting rights of newly freed slaves. But it wasn’t limited to that purpose. An earlier version of Section 2, introduced in 1865, specifically referred to limits on suffrage based on “race or color,” but the Senate rejected that limitation. The amendment forbids state interference with the rights of all eligible voters (then limited to males over 21).

Section 2 also applies to every state, a point Rep. John Bingham, the amendment’s principal drafter, emphasized during the floor debate: “The second section . . . simply provides for the equalization of representation among all the States in the Union, North, South, East, and West. It makes no discrimination.”

Congress has dealt with suffrage-abridgement problems through other constitutional and statutory means, especially the Voting Rights Act. But that doesn’t change the constitutional obligation to obtain citizenship data. A future Congress could decide to rely on Section 2 to enforce voting rights, particularly as the VRA’s core provision, requiring Justice Department approval when certain states change voting procedures, becomes irrelevant because of changing attitudes and Supreme Court precedent.

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Ignore Trump — the issue of birthright citizenship has been settled

By DAVID RIVKIN, JOHN YOO, Sept. 6 2015 in the Los Angeles Times

Donald Trump’s call to end birthright citizenship has roiled the Republican presidential primary. Jeb Bush, John Kasich and Marco Rubio embrace the traditional view that the Constitution bestows citizenship on anyone born on U.S. territory. Ben Carson and Rand Paul agree with Trump that Congress could dismantle birthright citizenship by itself. Meanwhile, Ted Cruz acknowledges birthright citizenship but seeks a constitutional amendment to abolish it.

Conservatives should reject Trump’s nativist siren song and reaffirm the legal and policy vitality of one of the Republican Party’s greatest achievements: the 14th Amendment. Under its text, structure and history, anyone born on American territory, no matter their national origin, ethnicity or station in life, is a U.S. citizen.

Although the original Constitution required citizenship for federal office, it never defined it. The 14th Amendment, however, 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.” Congress did not draft this language to alter the concept of citizenship but to affirm American practice dating from the origins of our republic.

With the exception of a few years before the Civil War, the United States followed the British rule of jus solis (citizenship defined by birthplace) rather than the rule of jus sanguinis (citizenship defined by that of parents), which still prevails in much of continental Europe. As the 18th century English jurist William Blackstone explained: “The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.” Read more »

Default and the Constitution: David Rivkin debunks debt ceiling myths

David Rivkin was featured on “The Journal Editorial Report” with host Paul Gigot,  the Wall Street Journal’s editorial page editor.   The video debunks a number of  myths of the impending decisions on raising the debt ceiling.  Mr. Rivkin explains how the 14th Amendment ensures that defaulting on our debt is impossible. The Wall Street Journal’s “Journal Editorial Report” is Fox News Channel feature that runs at least twice during a weekend.