By: Phillip Dolitsky | Features  | 

Law Review: The Mysterious Case of Birthright Citizenship

President Donald Trump recently announced his intentions to end birthright citizenship, the policy that grants citizenship to anyone born in the United States. The President has come under fire from Democrats and Republicans alike, with both sides arguing that doing so would violate the 14th Amendment. The question then arises: Does our Constitution automatically grant every child born in the United States citizenship? I believe there is a strong legal case to be made in favor of President Trump’s intention. Birthright citizenship is not as clear-cut a legal issue as it is often portrayed; it is a highly contested element of the Constitution.

In order to properly understand the 14th Amendment, a quick word about the legal philosophy that follows. In the following article, I will take a textualist approach to the Constitution. As the late Justice Antonin Scalia wrote, textualism is the “oldest and most commonsensical interpretive principle.” Namely that “in their full context, words mean what they convey to reasonable people at the time they were written — with the understanding that general terms may embrace later technological innovations.” I reject the notion of a “living Constitution,” namely, the theory that the Constitution is to be interpreted in light of current events, society and culture. As such, this paper will analyze, first and foremost, the language of the law and only then consider its intent. Furthermore, this article seeks to make no policy prescriptions. The intent of this article is to simply convey my understanding of what the 14th Amendment does or does not grant.

Prior to the adoption of the 14th Amendment, citizens of states were automatically considered citizens of the United States. But as the Dred Scott decision made clear, black Americans were not considered citizens of the United States. See Dred Scott v. Sandford, 60 U.S. 393 (1856). Four years after Dred Scott, the nation would be ravaged by a civil war in the hopes of ensuring that all Americans would be treated equally under the law. In 1866, the Civil Rights Act was passed to achieve that goal and two years later, the 14th Amendment was added to the Constitution. The purpose of the 14th Amendment, which was essentially a reproduction of the Civil Rights Act, was to unequivocally transform the former slave population into citizens of the United States and ensure that it would take a Constitutional Convention to reverse that reality. This brief history is necessary to properly understand the 14th Amendment and its purpose.

The 14th Amendment 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.” Advocates of birthright citizenship give significantly more weight to the first clause of the amendment; that all persons “born or naturalized in the United States” are automatically citizens. In doing so, birthright citizenship advocates argue for a common-law understanding of citizenship. In Justice William Blackstone’s 18th-century Commentaries on the Laws of England, Blackstone writes that “the children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.” See Blackstone Commentaries *373. If the 14th Amendment only included the birthplace clause, American law would indeed recognize this common-law understanding of citizenship. But what is meant by the second, often less-discussed, clause? What does “subject to the jurisdiction” of the United States really mean?

Senator Lyman Trumbull, who authored the Civil Rights Act, noted that “subject to the jurisdiction thereof” meant that the individual must be “subject to the complete jurisdiction thereof.” See Congressional Globe, 39th Congress (1866) p. 2893. Furthermore, Senator Trumbull’s understanding of the language of the amendment was shared by the Supreme Court in Elk v. Wilkins. There, the court held that being subject to the jurisdiction of the United States meant that one is “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.” See Elk v. Wilkins 112 U.S. 94 (1884). Understood in this way, tourists and visiting diplomats, while they are subject to following our penal laws, are not completely subject to American law, which is why we don’t sign them up for jury duty when they enter or have them file papers with the Selective Service System for military conscription. Illegal immigrants, however, remain subjects of their home country and cannot be viewed as owing “direct and immediate allegiance” to the United States.

Interestingly, the Court’s perspective in Elk v. Wilkins was echoed previously in the 1873 Slaughterhouse Cases, the first set of cases to deal with the 14th Amendment. There the court noted that “the phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” See Slaughterhouse Cases 83 U.S. 36 (1872). Two years later in Minor v. Happersett, the court noted that there were legitimate “doubts” if there was automatic citizenship for “children born within the jurisdiction without reference to the citizenship of their parents.” See Minor v. Happersett 88 U.S. 162 (1874). These monumental decisions demonstrably show that citizenship is only granted to children who are born in the United States to parents who have complete allegiance and are completely subject to the jurisdiction of the United States. Children born in the United States to illegal aliens would not be granted citizenship.

Advocates of birthright citizenship often point to the Supreme Court’s 1898 ruling in United States v. Wong Kim Ark. The Court’s opinion in United States v. Wong Kim Ark, however, only granted citizenship to a child born of lawful, permanent residents. See United States v. Wong Kim Ark 169 U.S. 649 (1898). Permanent residents, such as Wong Kim Ark’s parents, enjoy many rights that citizens enjoy, but are still limited in certain areas, such as being unable to vote in federal elections. In Justice Gray’s opinion, there is certainly room to argue that the 14th Amendment grants citizenship to children who have parents illegally in the United States. Nevertheless, there has never been a Supreme Court case that has upheld that reading of the opinion. The Court’s standing in the case seemingly does very little for the birthright citizenship argument.

When the President recently announced his intention to end the birthright citizenship policy, cries came in from both sides of the aisle that doing so is not only bad policy, morally and strategically, but also wrong constitutionally. While people of good faith can argue about the propriety of birthright citizenship as policy, I hope to have demonstrated here that the President would not only be in Constitutional bounds for ending this policy, but would be in line with a strong history of American jurisprudence.


Photo caption: The United States Constitution

Photo credit: George Fox University