The 14th Amendment to the U.S. Constitution reads: “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.”
Seems simple enough. Most Americans, upon reading this amendment, no doubt assume that it implies “birthright citizenship,” the tradition we’ve had that simply being born in this country automatically makes one a citizen, case closed. Most of us don’t know the larger historical context and reasoning associated with its creation and also wrongly assume that most other nations deal with citizenship in just this way. President Trump’s readiness to look at the issue of birthright citizenship in light of its flagrant abuse is a good thing –- it is not about race –- and we should examine it ourselves with the help of some of our favorite legal minds, who turn out to be of very similar mindset here.
This affects the status of about 300,000 children born here every year. Before we get started, it seems to me that there are actually two questions before us. First, was the amendment really intended to cover everyone who is born here, under every circumstance, as it’s being interpreted in practice today? And, second, if it’s being wrongly interpreted, is it advisable for President Trump to correct this by executive order so that people here illegally and those who come here just to give birth cannot get citizenship for their children this way?
Fortunately, the 14th Amendment has quite a rich backstory, coming as it did in the days of Reconstruction after the Civil War, when the question was, “How do we make citizens of former slaves?” To greatly condense this history lesson, the 13th Amendment freed the slaves; the 14th Amendment made them U.S. citizens. Little did legislators in the 1860s think that in another century and a half, just because of the 14th Amendment, pregnant Chinese and Russian women would be hopping planes to come to America and have their babies here, just for the birth certificate. (Especially the part about the planes, but I digress.) It seems obvious that they’d be saying, “No, no! That’s not what we meant at all!”
So, was the amendment intended to grant citizenship to all who are fortunate enough to be born here? The one little part that’s open to interpretation is the phrase “and subject to the jurisdiction thereof.” Law professor John Eastman said in a New York Times op-ed in 2015 that this phrase was understood at the time of adoption to mean “not owing allegiance to any other sovereign.” Former slaves had lived their entire lives in America and did not owe allegiance to another nation. To cite a modern example, if the child of an American couple is born in France, the baby is still an American citizen. Conversely, a child born in America to foreign diplomats is not an American citizen.
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Would modern courts interpret the word “jurisdiction” the way the originators of the amendment intended? As Andrew C. McCarthy says in NATIONAL REVIEW, the context now is so different and the issue of immigration so politicized that it’s easy to imagine the courts taking a whole different route with the term “jurisdiction.” (Note: this is why it’s so important to have constructionist judges.) But even assuming that the amendment wasn’t intended to grant birthright citizenship, is our practice of granting it merely an “executive policy” that the President has the power to change by executive order? McCarthy says he doesn’t think so.
The problem is, in 1952, Congress enacted a statute, Section 1401 of the immigration and naturalization code (Title 8, U.S. Code), that codifies the amendment, using that same word, “jurisdiction.” Thus, the courts of today could choose to focus more on what the word meant in 1952. And why did Congress even pass this law, given that they didn’t need to because there was already a constitutional amendment stating the same thing? McCarthy sees it as “a strong expression of Congress’ intent to exercise its constitutional authority to set the terms of citizenship.” And if Congress thought that its law was inconsistent with the practice of conferring birthright citizenship, it could have amended the law at some point, but it never has.
The President can always go ahead and interpret “jurisdiction” the way he wants and wait for the chance that Congress or the courts would say otherwise. His lawyers may have advised him as much. But McCarthy believes that “the President may not unilaterally change an understanding of the law that has been in effect for decades under a duly enacted federal law.” We’ve seen how the courts have reacted to other things Trump has tried to do. If he attempts this by executive order, we know that it will trigger an immediate injunction. McCarthy agrees that the current understanding of birthright citizenship needs changing but says that to get through the courts, it must be done legislatively, and even then he gives it “a less than 50-50 chance.”
Legal expert Jonathan Turley, in a piece for USA TODAY, notes that there are good-faith arguments on both sides of the birthright citizenship issue, and he looks forward to a clarification --- “a final and clear resolution.” Again, it comes down to the phrase “and subject to the jurisdiction thereof.” It would seem this means that the amendment applies only to citizens and legal residents who are subject fully to the legal jurisdiction of the United States.
But when the amendment was first being debated on the floor of the Senate, there was considerable talk about what “jurisdiction” meant. There are three possibilities; Turley’s article goes into detail.
Liberals are bringing up a case from 1898, The United States vs. Wong Kim Ark, in which the Supreme Court ruled 6-2 that the “14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory...including all children here born of resident aliens.” But the parents in that case were legal residents, who clearly were “subject to the jurisdiction” of the United States. We’re talking about something else: people here illegally or “tourists” here just long enough to give birth and collect the paperwork.
Turley points out that most countries, including our European allies, do not have birthright citizenship. The most common rule is “right of blood,” not “right of the soil.”
As to whether or not an executive order from Trump is the best way to ignite some change, Turley agrees with McCarthy that with something this important, it would be better for Congress to do it. “The use of an executive order rather than legislation or a constitutional amendment adds another controversial element to the combustive mix,” he says. On the other hand, it would finally force the courts to clarify what it means to be a citizen of our country –- something of tremendous importance.