Fox's so-called legal analyst Peter Johnson Jr. has been on a bit of a tear lately, relentlessly attacking the 14th Amendment and suggesting that his "hard look at" 14th Amendment Supreme Court cases shows that it was never meant to apply to children of foreign citizens. Yesterday, Johnson announced that we should "begin to discuss" ideas like giving a second class of citizenship for children of illegal immigrants, "meaning that if your parents are illegal in this country, then you would not be conferred the same type of citizenship that others" whose parents are citizens would get.
Later, he and Fox News host Megyn Kelly (both lawyers) continued to twist facts and ignored history on birthright citizenship, dismissing Supreme Court rulings on the 14th Amendment as being "political" rather than "constitutional."
Today on Fox & Friends, Johnson continued his assault on the 14th Amendment by imploring Fox News viewers to "look at the dissent" in the 1898 Supreme Court case U.S. v. Wong Kim Ark, which he said showed that the 14th Amendment wasn't meant to apply to children of illegal immigrants. He rather emphatically declared: "The dissent in that case said that the Chinese immigrant should NOT be a citizen based on the 14th Amendment." Why would Johnson be demanding viewers to "look at the dissent" of that case? Why, because the Supreme Court actually ruled that a child born in the U.S. to foreigners was a U.S. citizen, of course.
As the Congressional Research Service noted, the Supreme Court ruled in U.S. v. Wong Kim Ark that "where birth in the United States was clear, a child of Chinese parents was, in the Court's opinion, definitely a citizen under the Fourteenth Amendment, even though Chinese aliens were ineligible to naturalize under then-existing law." The Court further stated:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
Johnson also ignored that Senate debate at the time clearly shows that Congress recognized the impact this would have on children of "aliens," and as James C. Ho. -- who worked for Justice Clarence Thomas, George W. Bush, and Sen. John Cornyn -- wrote, the "plain meaning of" the 14th Amendment's "language is clear": It was meant to apply to anyone who was born in the U.S. whose parents were "subject to the jurisdiction" of U.S. laws. Ho stated:
A foreign national living in the United States is "subject to the jurisdiction thereof" because he is legally required to obey U.S. law. (By contrast, a foreign diplomat who travels here on behalf of a foreign sovereign enjoys diplomatic immunity from--and thus is not subject to the jurisdiction of--U.S. law.)
And, indeed, the Supreme Court has repeatedly upheld this interpretation. But rather than tell you all that, Peter Johnson Jr. would prefer that you look at dissenting opinions that confirm his worldview.
Watch him in action: