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更新时间:2018-10-31 20:06:09 来源:纽约时报中文网 作者:佚名

Trump’s Birthright Citizenship Proposal Is at Odds With Legal Consensus

WASHINGTON — The words of the 14th Amendment are plain, and the scholarly and judicial consensus about what they mean is nearly uniform: Children born in the United States automatically become citizens of the United States.


In an interview released Tuesday, President Trump proposed a different reading of the amendment, one he said denies birthright citizenship to the children of undocumented immigrants. Mr. Trump said he was preparing to issue an executive order to that end.


The statement sounded more like a political stunt than a reasoned legal argument, and its timing, coming a week before the midterm elections, was suspect. Nor was it clear what the executive order would say, or how it could change the meaning of the Constitution.


But there was little question that any action by Mr. Trump to try to alter birthright citizenship would be met with immediate legal challenges.


“The president cannot erase the Constitution with an executive order, and the 14th Amendment’s citizenship guarantee is clear,” said Omar Jadwat, the director of the American Civil Liberties Union’s Immigrants’ Rights Project. “This is a transparent and blatantly unconstitutional attempt to sow division and fan the flames of anti-immigrant hatred in the days ahead of the midterms.”

“总统不能用行政命令抹掉宪法,而第14修正案的公民身份保证也很明确,”美国公民自由联盟移民权利项目(American Civil Liberties Union’s Immigrants’ Rights Project)主任奥马尔·贾德瓦特(Omar Jadwat)说。 “在中期选举的前几天,这是昭然若揭、公然违宪的制造分裂企图,而且力图煽动反移民仇恨的火焰。”

The citizenship clause of the 14th Amendment, ratified in the aftermath of the Civil War, says, “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.”


The meaning of that clause is plain, said Peter J. Spiro, a law professor at Temple University. “The conventional understanding is absolutely clear that children born in the United States are citizens of the United States, with the insignificant exception of the children of diplomats,” he said.

天普大学(Temple University)的法学教授彼得·J·斯皮罗(Peter J. Spiro)说,该条款的含义很明确。“传统的理解绝对清晰,在美国出生的孩子就是美国公民,外交官子女的例外微不足道,”他说。

A main purpose of the clause was to overrule Dred Scott, the shameful 1857 Supreme Court decision that said black slaves were property and not citizens. The decision said the Constitution barred Congress and the states from granting citizenship to the descendants of slaves, and it helped prompt the Civil War.

该条款的主要目的是否决德雷德·斯科特(Dred Scott)一案,这是1857年最高法院可耻的决定,称黑人奴隶是财产而不是公民。该决定称,宪法禁止国会和各州向奴隶后裔授予公民身份,该决定参与推动了内战。

“In its most monumentally erroneous decision, the Supreme Court created a monstrous exception to the common law rule that birth on American soil to a free person was sufficient for American citizenship,” Walter Dellinger, then the head of the Justice Department’s Office of Legal Counsel, said in congressional testimony in 1995. “The court held that no persons of African descent — including free persons of African descent — and none of their descendants for all time to come could ever be citizens of the United States regardless of their birth in America.”

“这是最高法院最重大的错误决定之一,普通法规定,在美国土地上作为自由人出生便足以获得美国公民身份,该决定为其制造了一个可怕的例外,”时任司法部法律顾问办公室(Justice Department’s Office of Legal Counsel)主任沃尔特·德林杰(Walter Dellinger)在1995年的国会证词中说道。“法院认为,非裔——包括自由的非裔——以及他们的后代都不能成为美国公民,无论他们是否出生在美国。”

In congressional debates about the 14th Amendment in 1866, lawmakers said its sweep should be wide.


“Is the child of the Chinese immigrant in California a citizen?” Senator Edgar Cowan of Pennsylvania asked on the Senate floor.

“加利福尼亚州中国移民的孩子是公民吗?”宾夕法尼亚州参议员埃德加·考恩(Edgar Cowan)在参议院询问。

Senator John Conness of California said the answer was yes.

加州参议员约翰·康尼斯(John Conness)表示,答案是肯定的。

“The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens,” Mr. Conness said.


The Supreme Court confirmed that understanding in 1898 in United States v. Wong Kim Ark, ruling that a child born in San Francisco to Chinese parents was a United States citizen, even though the parents were prohibited by the Chinese Exclusion Act from ever becoming citizens.

最高法院确认了1898年在美国诉黄金德(United States v. Wong Kim Ark)案中达成的理解,裁定中国父母在旧金山生下的孩子是美国公民,即使《排华法案》禁止其父母成为公民。

“To hold that the 14th Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries,” the court said, “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”


James C. Ho, a conservative legal scholar recently appointed by Mr. Trump to the federal appeals court in New Orleans, has written that the message of the decision is unmistakable. “This sweeping language reaches all aliens regardless of immigration status,” he wrote in 2006.

最近由特朗普任命为新奥尔良联邦上诉法院法官的保守法律学者何俊宇(James C. Ho)写道,该决定的信息是明白无误的。“这种笼统的语言涵盖了所有外国人,无论其是否拥有移民身份,”他在2006年写道。

The 1898 decision did not specifically discuss unauthorized immigrants. But in 1982, in Plyler v. Doe, the Supreme Court ruled that undocumented children were entitled to free public education. The court relied on another part of the 14th amendment, its equal protection clause, and it interpreted language similar to that in the citizenship clause.

1898年的判决没有具体讨论未获允许的移民。但在1982年,在普莱勒诉无名氏(Plyler v.Doe)案中,最高法院裁定无身份证明儿童有权享受免费公共教育。法院的裁判是依据第14修正案的另一部分,即平等保护条款;它的解释语言与公民身份条款的语言相类似。

“Although the court splintered over the specific question of public education,” Mr. Ho wrote, “all nine justices agreed that the Equal Protection Clause protects legal and illegal aliens alike. And all nine reached that conclusion precisely because illegal aliens are ‘subject to the jurisdiction’ of the U.S., no less than legal aliens and U.S. citizens.”


In asides in later decisions, too, the Supreme Court has assumed that the children of unauthorized immigrants born in the United States are citizens.


Two of Mr. Trump’s appointees sit on the Supreme Court, and it is more conservative than it has been in decades. But there is little reason to think a majority of the justices would be inclined to adopt Mr. Trump’s understanding of the 14th Amendment, as the constitutionality of birthright citizenship is not an issue that tends to divide lawyers along ideological lines.


“According to the best reading of its text, structure and history, anyone born on American territory, no matter their national origin, ethnicity or station in life, is an American citizen,” John Yoo, who served in the George W. Bush administration and is now a law professor at the University of California, Berkeley, wrote last week.

“根据对文本、结构和历史的最佳解读,只要出生于美国领土,无论其国籍、种族或身份,都是美国公民,”曾在小布什(George W. Bush)政府任职、现为加州大学伯克利分校法学教授的柳约翰(John Yoo)上周写道。

“The 14th Amendment settled the question of birthright citizenship,” Professor Yoo wrote. “Conservatives should not be the ones seeking a new law or even a constitutional amendment to reverse centuries of American tradition.”


A few prominent scholars have dissented, notably Peter H. Schuck, an emeritus professor at Yale Law School. “The argument against any birthright citizenship is that these children are here as a result of an illegal act and thus have no claim to membership in a country built on the ideal of mutual consent,” he wrote in 2010.

一些著名学者对此表达了异议,尤其是耶鲁大学法学院荣休教授彼得·H·舒克(Peter H. Schuck)。“反对出生公民权的理由是,这些孩子在这里是违法行为的结果,因此在一个基于双方同意为目标的国家里,他们无权要求成为公民,”他在2010年写道。

Mr. Trump did not say whether his executive order would attempt to apply his understanding of the 14th Amendment retroactively. Revoking citizenship, the Supreme Court has said, poses special concerns.


“The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship,” the court said in Afroyim v. Rusk, a 1967 decision that struck down a federal law canceling the citizenship of people who voted in foreign elections.

“基于我们自由政府的本质,一群短暂执政的公民剥夺另一群公民身份的做法,是完全不符合法治精神的,”最高法院在阿弗罗伊姆诉鲁斯克(Afroyim v. Rusk)一案中说。1967年的这项判决推翻了一项联邦法律,该法律要取消在国外选举中投过票的人的公民身份。

“We hold that the 14th Amendment was designed to, and does, protect every citizen of this nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race,” the court said. “Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”


There may be good policy arguments for doing away with birthright citizenship, but most legal scholars say it would take a constitutional amendment to do so. In his 1995 testimony, Mr. Dellinger said that a federal statute would not do, meaning that the executive order discussed by Mr. Trump would certainly not suffice.


“Because the rule of citizenship acquired by birth within the United States is the law of the Constitution, it cannot be changed through legislation, but only by amending the Constitution,” he said.


He added that history has lessons to teach. “From our experience with Dred Scott,” Mr. Dellinger said, “we had learned that our country should never again trust to judges or politicians the power to deprive from a class born on our soil the right of citizenship.”

他还补充说,历史上有过经验教训。“从我们在德雷德·斯科特(Dred Scott)一案的经验,”德林杰说,“我们认识到,我们的国家再也不应该相信法官或者政客有权剥夺生于这片土地上的人获得公民身份的权利。”