The fight over birthright citizenship and the 14th Amendment

Colin Mortimer: A defense of birthright citizenship

On his first day in office, President Trump issued an executive order aimed at ending automatic citizenship — known as “birthright citizenship” — for children born in the United States to two non-citizen parents.

His argument rests on interpreting the phrase “subject to the jurisdiction thereof,” found in the 14th Amendment, which codified birthright citizenship into the Constitution. Trump claims that non-citizens, both legal immigrants and undocumented immigrants, are not “subject to the jurisdiction” of the United States. Therefore, their children are not entitled to automatic citizenship.

It’s clear that Trump has little regard for America’s extraordinary ability to welcome newcomers and transform them into fully equal citizens. It’s just as clear that he can’t nullify a constitutional right with the stroke of a pen.

The president’s interpretation has been tested by the Supreme Court and found invalid. In United States v. Wong Kim Ark (1898), the court ruled that a child born to Chinese immigrants was a U.S. citizen by birth, even though his parents were not eligible for citizenship. The court affirmed that “every person born in the United States … needs no naturalization.” In the 1980s, the court reaffirmed this principle in Plyler v. Doe and INS v. Rios-Pineda.

The Supreme Court has specifically clarified what “subject to the jurisdiction thereof” means. Today, it refers to diplomats and their children, who are not subject to U.S. law because of diplomatic immunity. Diplomats generally cannot be arrested, charged or imprisoned. They are, by law, outside U.S. jurisdiction.

If the president has a different interpretation of the 14th Amendment, his administration regularly contradicts it with its actions. The president has increased law enforcement actions against legal immigrants on visas and illegal immigrants, sending them to jail, deporting them, and even, in some cases, airlifting them to foreign prisons for detention. 

Trump’s actions demonstrate, repeatedly, that he thinks people in America on visas and illegal immigrants are subject to the legal jurisdiction of the United States. If this is the case, these same immigrants and their children are covered by the 14th Amendment.

Critics of birthright citizenship will argue that it encourages illegal migration to gain citizenship for unborn children and birth tourism. However, there’s little evidence of either. Births to undocumented mothers have declined since 2009. And undocumented parents gain no immediate benefit from having a child here — citizen children can’t sponsor a parent until age 21. As for birth tourism, it’s rare: the Niskanen Center estimates fewer than 2,000 such births a year. Border officials already have the authority to deny entry to women suspected of coming to the United States for this purpose.

More fundamentally, birthright citizenship should remain because it embodies our national ideals. America is a nation of immigrants, founded on the premise that American identity is rooted in shared values that anybody can live by — not by immutable traits such as race or ethnicity. The 14th Amendment was adopted to enshrine that principle permanently rather than leave it vulnerable to the shifting whims of politicians. Punishing children for their parents’ status or creating two classes of birth contradicts the Declaration of Independence’s assertion that “all men (sic) are created equal.”

What Trump proposes — confining citizenship primarily to those with a citizen parent — is rooted in jus sanguinis, or “right of blood,” a European concept America explicitly rejected at its founding. Instead, our full commitment to jus soli — “right of the soil” — ensures that we do not become a society stratified into citizens and non-citizens based on birthright. Immigrant families invest more in our country when they know their children will be treated as equals. Unlike many European countries that struggle to integrate newcomers, the United States has absorbed wave after wave of immigrants with relative success because they are fully American by the second generation.

Birthright citizenship represents the best of America: a clear, principled rule that has served us well for over 150 years. It cannot be easily changed, nor should it be, because it defines who we are: a nation where everyone is given a chance to belong and succeed from the very start.

Editor’s note: Colin Mortimer is a senior director at the Progressive Policy Institute, serves on the board of New Democracy and is a founder of the Center for New Liberalism. He wrote this for InsideSources.com. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.

J. Christian Adams: Conventional wisdom behind birthright citizenship is flat error

J. Christian Adams: Conventional wisdom behind birthright citizenship is flat error

Once upon a time, doctors were convinced that using leeches and drawing the blood of patients cured illness. No matter how widely accepted that error was, leeches didn’t cure anything. The same is true for the belief that anyone born in the United States automatically becomes an American citizen.

Please stick with me; I used to think it was true. Then I read the Supreme Court cases purportedly saying the 14th Amendment automatically makes a child born in the United States an American citizen. 

United States v. Wong Kim Ark is a Supreme Court case from 1898 that supporters of automatic birthright citizenship say settled the matter. 

It didn’t, not even close. 

Wong Kim Ark addressed a very narrow legal question: whether a child born in the United States to lawful permanent residents of Chinese descent was entitled to citizenship under the 14th Amendment. The case did not, despite the conventional wisdom over decades, reach the question of whether children born to parents illegally in the United States were entitled to citizenship under the amendment.  

In other words, it did not answer whether those not subject to the political jurisdiction were entitled to birthright citizenship. The court ruled in favor of Wong Kim Ark, concluding that the children of lawful permanent residents who are “domiciled” in the United States are entitled to birthright citizenship.

Wong Kim Ark did not address the question of whether children born to individuals who are unlawfully present in the United States qualify for birthright citizenship, no matter how many activists say otherwise.

So, how did the train get rolling where birthright citizenship became commonly accepted? Like so much that goes wrong, it all started with a bureaucrat. It wasn’t until the second half of the 20th century that State Department officials began issuing passports to anyone born in the United States. 

At some point in the history of medicine, some quack thought bleeding patients with leeches cured illness. At some point in the 20th century, a bureaucrat in Washington decided to start issuing passports to anyone born in the United States.

The 14th Amendment has a clause that grants citizenship to people born in the United States “and subject to the jurisdiction thereof.” The Supreme Court in Wong Kim Ark made it clear that “subject to the jurisdiction thereof” has meaning. There are limits to who can become an American just by being born on United States soil.

I have filed an amicus brief in the Supreme Court for former Attorney General Edwin Meese III. The Public Interest Legal Foundation represents Meese because this issue is central to our nation. The electorate’s composition has changed dramatically in the last half-century since the State Department started bleeding the patient.

This case will boil down to the difference between political and territorial jurisdictions. The authors of the 14th Amendment explicitly, on the floor of the Senate, said citizenship was to extend only to those subject to the political jurisdiction of the United States and not a foreign power. Sen. Lyman Trumbull of Illinois, a key architect of the amendment, explained that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else.” 

In contrast to the authors of the 14th Amendment, open borders advocates want “subject to the jurisdiction” to mean territorial jurisdiction. That means “step on United States soil and give birth, instant American.”

That view is an outlier globally. One misguided bureaucrat shouldn’t count more than the authors of the 14th Amendment.

Editor’s note: J. Christian Adams is president of the Public Interest Legal Foundation and a commissioner on the U.S. Commission on Civil Rights. He wrote this for InsideSources.com. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.