Dershowitz: Blanket Birthright Citizenship Is 'Foolish', But It's in the Constitution

On Tuesday’s broadcast of Newsmax TV’s “The Record,” Harvard Law Professor Emeritus Alan Dershowitz stated that blanket birthright citizenship is “foolish” and “one of the least persuasive parts of our Constitution,” but is in the Constitution, so changing it would be difficult to do without amending the Constitution and trying to do so through executive order as President Donald Trump did is not constitutional.

Host Greta Van Susteren asked, “Tell me, is this constitutional, does the President have the authority to do this?”

Dershowitz answered, “The answer seems pretty clear that it’s not constitutional. I think the idea that a person born in the United States is automatically a citizen is foolish. You have somebody who has no connection to the country, his mother was here skiing and she had an early pregnancy and the baby was born, and, three days later, was sent back to her country and never came to the United States again…can be a full and complete citizen that the only exception to it is the 14th Amendment says, ‘All persons born’ — that person was born — ‘and subject to the jurisdiction thereof’, and that’s where some people say, well, if a person left the country and never had any connection, maybe that person isn’t subject to the jurisdiction of the United States. I think that would require legislation.”

He continued, “So, I think the weakest case is the president just announcing it. It may be the right thing to say from a policy point of view. The second, stronger, case would be if Congress passed legislation saying a person born in the United States will not be deemed subject to its jurisdiction if he is not in the country for and then list a bunch of times. But I think the weakest case is just to announce that we’re just not going to follow the words of the 14th Amendment. That seems very, very difficult to justify. Obviously, the courts will have the last word on this, and it depends on whether you’re a literalist reading the Constitution or more of a functionalist. The rule itself is not a wise rule, but it’s in the Constitution.”

Dershowitz further stated that while there will be people with standing to challenge the order, there are issues over whether the state attorneys general challenging the executive order have standing.

He concluded, “I don’t blame President Trump for trying to eliminate one of the least persuasive parts of our Constitution, but, if it’s in the Constitution, it’s hard to do, except by constitutional amendment, certainly in the absence of legislation.”

Follow Ian Hanchett on Twitter @IanHanchett