Birthright Citizenship Is American Citizenship

On his first day in office, President Donald Trump ordered a wholesale change in the federal government’s immigration policies.  Trump declared that almost four years of unrestricted and illegal entry amounts to an invasion of the United States. He deployed the military to stop all illegal migration, ordered a restart to the building of the wall between the U.S. and Mexico, and virtually suspended normal immigration laws at the southern border.  He has ordered the Justice Department and law enforcement agencies to focus on the capture and removal of illegal aliens with a priority on those who have committed violent crimes and felonies.  Trump campaigned to control the southern border and restore an orderly immigration process. He is keeping his promise – though the use of the military to effectively enforce civilian immigration law will open up a pandora’s box of legal and political problems for years.

But while Trump launched this revolution in immigration policy, the symbolic has drawn far more attention.  In an executive order entitled “Protecting the Meaning and Value of American Citizenship,” Trump forbade the government from recognizing the citizenship of any child born in the United States to parents who are not citizens or green card holders.  While the order does not set out how the executive branch agencies will carry out this mandate, it could lead to the State Department refusing to issue passports to these children and the Department of Homeland Security locating and deporting them (since these children would have no legal status to remain in the country).  Trump’s effort to end birthright citizenship attracted a lawsuit by 22 states, activist groups, and expectant mothers and, yesterday, an injunction by a Washington federal district judge, who declared the order “blatantly unconstitutional.”

This issue is more symbolic than real because birthright citizenship makes little difference in the fundamental problems with immigration.  Our immigration system broke down because the Biden administration refused to secure the southern border and to enforce the law.  The United States has a population of about 350 million; Pew Research estimates that only 1.3 million citizens today were born to illegal aliens.  An estimated 3 million illegal aliens per year crossed the southern border during the Biden years, while Pew estimates that in 2016, 250,000 babies were born to illegal aliens (with the trends going down).  Ending birthright citizenship not only seeks to undo the settled understanding of the Constitution, but it would also be a drop in the bucket in stopping the uninterrupted flow of illegal aliens across our borders.

Nevertheless, John Eastman, my friends at the Claremont Institute, and other conservatives have focused their efforts on overturning the constitutional practice of the nation for most of its history.  He argues that “the 14th Amendment’s Citizenship Clause does not provide automatic citizenship for everyone born on U.S. soil, no matter the circumstances.”  Instead of following the traditional Anglo-American rule that citizenship depended on the place of birth (jus soli), the Constitution follows the European continental rule that citizenship is based on the parents' lineage (ius sanguinis).  Eastman suggests, unfortunately, that “honest scholars” cannot defend the traditional American rule.  He claims that these dishonest scholars, judges, lawyers, and government officials have deliberately misread for more than 150 years the original understanding of the Constitution, the Fourteenth Amendment, and even Supreme Court precedent.

I think Eastman and the small band of Claremont scholars who support him have misconstrued the law and policy of the 14th Amendment. According to the best reading of its text, structure, and history, anyone born on American territory, no matter their national origin, ethnicity, or station in life, is an American citizen.

While the original Constitution required citizenship for federal office, it provided no definition.  For the first time, the Fourteenth Amendment did.  It provides that “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.” There is no evidence that the drafters of the Fourteenth Amendment sought to work any revolution in the definition of citizenship.  Except for a few years before the Civil War, the United States followed the British rule of jus soli rather than the rule of jus sanguinis.  As the 18th century English jurist William Blackstone explained: “the children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.”  It appears that American immigration practice between the Founding and the Reconstruction Amendments shows that the states and the federal government continued to follow jus soli.  Congress did not draft the Fourteenth Amendment to change citizenship but to affirm American practice dating from the origins of our Republic.

Instead, the Fourteenth Amendment’s framers sought to correct the most grievous travesty in American constitutional history: slavery and the deprivation of the rights of African-Americans.  In Dred Scott v. Sanford, Chief Justice Roger Taney concluded that slaves –even those born in the United States – could never be citizens of the United States.  He argued that the Founders believed that blacks were never to become equal Americans, even though the Constitution nowhere contained text that excluded them from citizenship nor prevented Congress or the states from recognizing their rights.

The Fourteenth Amendment directly overruled Dred Scott by declaring that all persons born in the US were citizens. By setting out the definition in the Constitution, the Reconstruction Congress and the ratifying states also forever prevented Congress and the President from removing citizenship from children born to any group, especially ethnic, religious, or political minorities.  The only way to avoid this clear, obvious reading of the Constitution’s text is to misread the 14th Amendment’s phrase, “subject to the jurisdiction thereof.” According to Eastman and Edward Erler, the scholar whose work has made the most extensive case against birthright citizenship, the phrase created an exception that swallows the jus soli rule.  Eastman and Erler argue that “subject to the jurisdiction thereof” requires that a citizen not only be born on American territory but that his parents also must be citizens. Aliens who owe allegiance to another nation, in their view, are not “subject to the jurisdiction” of the United States.  Eastman and Erler claim that the Reconstruction Congress, which sought to overturn Dred Scott permanently, simultaneously sought to radically narrow the definition of citizenship.  There is no historical evidence that we should understand the work of the Reconstruction Congress in this way. The Reconstruction Congress is responsible for the greatest expansion in the recognition of constitutional rights other than the First Congress, which proposed the original Bill of Rights.  

That view does not make sense of the Fourteenth Amendment’s text, nor the clear understanding of the phrase “subject to the jurisdiction thereof” held at the time of Reconstruction. The Fourteenth Amendment’s reference to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” refers to children born in US territory and are subject to American law at birth. Everyone on our territory, even aliens, fall under the jurisdiction of the United States. Imagine if one read the rule differently.  If aliens did not fall within the jurisdiction of the United States while on our territory, they could violate federal law and claim that the government had no jurisdiction to arrest, try, and punish them.

Eastman, Erler, and other Claremont scholars respond; however, they argue that “subject to the jurisdiction thereof” must refer to citizen parents or risk being redundant with being born on US territory. In other words, if the Reconstruction Congress had wanted to recognize birthright citizenship, why include “subject to the jurisdiction thereof” at all?  Leaving the words out would have achieved the same result.  But during the period between the Founding and Reconstruction, domestic and international law recognized that certain classes of people could be within American territory but not fall under American laws.  These categories included foreign diplomats and enemy soldiers occupying US territory during war. International law grants them immunity from applying to them that nation's domestic laws when present on the soil of another nation.  A third important category demonstrates that “subject to the jurisdiction thereof” was no mere surplusage.  American Indians residing on tribal lands were not subject to U.S. jurisdiction.  From the Founding to Reconstruction, the Indian tribes exercised considerable sovereignty free from federal law – they had never benefitted (or suffered) under the rule of birthright citizenship.  Once the federal government reduced tribal sovereignty in the late 19^th and early 20^th centuries, it extended birthright citizenship to Indians in 1924.

The Fourteenth Amendment’s drafting supports this straightforward reading of the text. The 1866 Civil Rights Act, passed just two years before the ratification of the Fourteenth Amendment, extended birthright citizenship to US citizens except those “subject to any foreign power” and “Indians not taxed.” The Reconstruction Congress decided to pass the Fourteenth Amendment because of uncertainty over federal power to enact the 1866 Act.  If the 14th Amendment’s drafters had wanted “jurisdiction” to exclude children of aliens, they could have simply borrowed the exact language from the 1866 Act to extend citizenship only to those born to parents with no “allegiance to a foreign power.”  The reading proposed by my Claremont Institute friends makes the mistake of reading very different legal phrases to mean the exact same thing – something Chief Justice John Marshall cautioned against as long ago as McCullough v. Maryland.

Scholars such as Eastman and Erler claim, however, that the debates of the Reconstruction Congress reveal a completely different intent than the one displayed in the text.  As an interpretive matter, it is unclear whether the views of individual members of the Reconstruction Congress should count more than the views of the states that ratified the Amendment. But we have few records of the ratification debates in the state legislatures, which is why the settled meaning history of constitutional practice and common law has become more critical. State legislators may have resorted to such sources rather than a few stray comments in Congress that contradicted the meaning of the amendment’s text.  Legal meaning, judicial decisions, and government practice are far more important to uncovering the original public meaning of the Fourteenth Amendment than one or two interactions on the floor of the Congress that drafted the language.

But even if we were to elevate the importance of congressional debate, the few instances in which Congress addressed the issue appear to support birthright citizenship.  When the text of the Fourteenth Amendment came to the floor, congressional critics recognized the broad sweep of the birthright citizenship language. Pennsylvania Senator Edgar Cowan asked supporters of the Amendment, “Is the child of the Chinese immigrant in California, a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?” California Senator John Conness of California responded yes.  Conness would lose re-election due to anti-Chinese sentiment that opposed his views on immigration. The original public meaning of the Fourteenth Amendment affirms, rather than denies, birthright citizenship.

Courts have never sought to overturn this understanding of the Fourteenth Amendment based on originalist approaches to interpretation.  In United States v. Wong Kim Ark (1898), the Supreme Court upheld the American citizenship of a child born in San Francisco to Chinese parents.  The Chinese Exclusion Acts had already forbidden his parents from ever claiming American citizenship.  If Eastman and Erler’s reading of the Fourteenth Amendment were correct, the Supreme Court should have held that Wong was not a citizen either.  Instead, the Court declared that “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” The Court explicitly rejected the claim that aliens were not within “the jurisdiction” of the United States because they owed allegiance to a foreign nation.  Eastman and Erler respond that Wong Kim Ark did not involve illegal aliens because Ark’s parents were in the United States legally under the Exclusion Acts.  Therefore, the case, on its facts, does not address today’s problem of children born to illegal aliens.  However, at the time of Wong Kim Ark, the federal government had not enacted any comprehensive immigration laws that defined legal and illegal aliens.  The legal status of Ark’s parents made no difference in the decision.

Wong Kim Ark is not just an artifact that history has long passed by.  The modern Supreme Court, in dicta, has reaffirmed it.  In Plyler v. Doe (1982), a 5-4 majority observed that the Fourteenth Amendment’s Equal Protection Clause forbade states from excluding the children of illegal aliens from public schools. The Justices unanimously agreed, however, that “no plausible distinction for the 14th Amendment’s ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful.”  Critics of birthright citizenship today can certainly argue that the Court erred in Plyler, just as they can argue that the Court erred in Wong Kim Ark.  But they must show that the weight of historical evidence of the original understanding of the Fourteenth Amendment justifies reversing 140 years of unbroken judicial interpretation.  They cannot because the traditional sources of legal meaning run exactly the other way.

The Fourteenth Amendment recognized the traditional American norm of birthright citizenship. No Supreme Court, Congress, or President has acted to the contrary. As head of the executive branch, Trump has the authority to order the agencies to pursue a different interpretation. He can use his discretion to prompt a test case that will swiftly reach the Supreme Court, which will almost certainly affirm Wong Kim Ark. It is hard to see a conservative, originalist Supreme Court rejecting the traditional American understanding of citizenship held from the time of the Founding, through Reconstruction, to today. But while destabilizing settled constitutional meaning, Trump may suffer severe political costs without doing anything to solve the problems of immigration and the southern border.