Birthright Citizenship: A Fourteenth Amendment Guarantee

By Kelly Harmon

Over the week of October 29, 2018, President Donald Trump insisted that he was going to find a way to end birthright citizenship, likely in an attempt to incite his supporters prior to the midterm elections on November 6.[1] In addition to an HBO interview on the topic, President Trump wrote on his Twitter account, among other Tweets on the subject, “So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof.’ Many legal scholars agree…..”[2]

The Fourteenth Amendment of the United States Constitution states, “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.”[3] Historically, this clause, commonly known as the Citizenship Clause, has been read to mean that any child born in the geographical boundary of the United States is a citizen, with a few exceptions, such as for the children of foreign diplomats.[4]

In the 1857 Dredd Scott decision, the Supreme Court held that people of African descent, who were brought as slaves to the United States, and their descendants, who were either slaves or born free, were not American citizens and, thus, not entitled to the protections of the Constitution.[5] In response to the decision, the 39th Congress proposed the Fourteenth Amendment by broadening the definition of citizenship to all people born or naturalized in the United States.[6] The Fourteenth Amendment was ratified in 1868.[7] In the Slaughter-House Cases of 1872, the Court recognized that the Fourteenth Amendment overturned the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States.[8] The Court stated that the phrase “subject to the jurisdiction thereof” was “intended to exclude from its operation children of minsters, consuls, and citizens or subject of foreign States born within the United States,” which would deny birthright citizenship to all those children born to parents who immigrated to the United States illegally.[9] In 1884, the Court held in Elks v. Wilkins that Native Americans born into tribes, although born within the United States in the geographical sense, were not citizens because of their allegiance to the tribe.[10]

However, in United States v.Wong Kim Ark, the Court dismantled both the Slaughter-House and Elk decisions.[11] The Court held that the definition of “subject to the jurisdiction thereof” applied in the Slaughter-House Cases was made “wholly aside from the question in judgement. . . [and] unsupported by any argument, or by any reference to authorities.”[12] The Court also pointed out that the Elk case only concerned members of American Indian tribes, not children born in the United States of foreign parents who were not in diplomatic foreign service.[13] The Court held that Congress could not deny the citizenship of a person who was born in the U.S. when his parents, who were of foreign descent and still subjects of foreign powers, 1) had permanent domicile and residence in the U.S. and 2) were in the U.S. for a business, which was not in the diplomatic or of official capacity of a foreign power.[14] The Court interpreted the phrase “subject to the jurisdiction thereof” in the light of the English common law, which it reasoned the framers of the Constitution would have used.[15]

Anti-immigration supporters argue that “subject to the jurisdiction thereof” could be interpreted in a different way.[16] President Trump’s proposal for ending birthright citizenship is based on the idea that 1) “subject to the jurisdiction thereof” means that children are only citizens when they are “not subject to some foreign power” and 2) children with parents who immigrated to the United States illegally have an allegiance to their parents’ home country.[17] Further, anti-immigration supporters claim that birthright citizenship needs to end for such reasons as mass illegal immigration, chain migration, and the modern movement of affordable international travel causing an increase of “birth tourism.”[18] Supporters have also noted that other countries have ended birthright citizenship.[19] However, actual data fail to support this rhetoric.[20]

First, the number of births to undocumented immigrants has been decreasing significantly since it peaked in 2007.[21] The number of babies born in the United States in 2007 to parents who were unauthorized immigrants was estimated to be around 390,000, while that number in 2016 was estimated to be 250,000, which is a thirty-six percent decrease.[22] Second, chain migration, which allows U.S. citizens and green card holders to bring family members into the U.S., is not an unlimited free-for-all for family-sponsored immigration.[23] Although the Immigration Act of 1990 does not set a maximum for the number of “immediate relatives”—which include a U.S. citizen’s spouse, unmarried sons and daughters,[24] or parents—that a U.S. citizen could sponsor, the Act does set a maximum on the number of sponsorships for all other types of family relationships, such as with a U.S. citizen’s married children.[25] Further, the Act caps the total number of family-sponsored immigrants to 480,000 per year.[26] Third, the number of birthright citizen babies born due to “birth tourism” is low; a 2016 study by the Urban Institute showed that seventy-two percent of birthright citizens were born to unauthorized immigrant parents who had been living in the U.S. for at least five years.[27] Fourth, while many European countries have ended birthright citizenship, thirty countries continue to recognize it, especially countries in the western hemisphere that were settled by European colonial powers that created lenient immigration laws to attract immigrants or where a movement for an expansive definition of citizenship arose in response to the abolition of slavery.[28]

Not only are the policy arguments behind an alternative interpretation invalid, but looking at the plain text of the Fourteenth Amendment, the language “subject to the jurisdiction thereof” clearly only means that a person born in the United States must be a person over whom the government has the power to enforce its laws for that individual to qualify as a citizen.[29] The phrase is used to qualify “all persons born or naturalized in the United States” in a manner that only excludes those that are not subject to the United States’ jurisdiction, such as the children of diplomats. The language is meant to include anyone that is subject to the laws of the United States, including the children born in the United States to immigrants who entered the United States illegally.[30] The Fourteenth Amendment’s Citizenship Clause, with a few specified exceptions, guarantees that children born in the United States are citizens regardless of the citizenship status of their parents, and any attempt by the Trump administration to argue otherwise is not based in precedent.

 

[1] See Scott Horsley, Trump Continues Rhetoric on Immigration Ahead of Election, NPR (Oct. 31, 2018, 1:59 PM), https://www.npr.org/2018/10/31/662560162/in-campaign-sprint-trump-focus-on-immigration-not-a-winner-for-all-gop-candidate (discussing how President Trump is using illegal immigration as a hot-button issue in his political rallies, which had been primarily located in red states where control of the Senate would have been decided, prior to the midterm election).

[2] Donald Trump (@realDonaldTrump), Twitter (Oct. 31, 2018, 8:25 AM), https://twitter.com/realDonaldTrump/status/1057624553478897665.

[3] U.S. Const.amend. XIV, § 1.

[4] See, e.g.,United States v. Wong Kim Ark, 169 U.S. 649, 682 (1898).

[5] Dred Scott v. Sandford, 60 U.S. 393, 411-12, 427 (1857).

[6] See U.S. Const.amend. XIV, § 1; Garrett Epps, The Citizenship Clause Means What It Says, The Atlantic (Oct. 30, 2018), https://www.theatlantic.com/ideas/archive/2018/10/birthright-citizenship-constitution/574381/ (explaining the Fourteenth Amendment in context of Dred Scott v. Sandford, 60 U.S. 393, 427 (1857)); see Cong. Globe, 39th Cong., 1st Sess. 3025, 3031 (1866) (statement of Sen. Henderson) (asking Congress to look at the first section of the amendment regarding citizenship in light of the Dred Scott dissent, which argues that 1) citizenship expands to all free people born on U.S. soil and 2) citizenship will extend to those people born in the U.S. into slavery as soon as the State’s laws make him a free man); see also Cong. Globe, 39th Cong., 1st Sess. 2890, 2896 (1866) (statement of Sen. Howard) (“We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen . . . who would pull the whole system up by the roots and destroy it, and expose the freedmen again to the oppressions of their old masters.”).

[7]  Proclamation No. 13, 15 Stat. 708 (1868).

[8]Slaughter-House Cases, 83 U.S. 36, 73 (1872).

[9] Id.

[10] Elk v. Wilkins, 112 U.S. 94, 102 (1884).

[11] See United States v. Wong Kim Ark, 169 U.S. 649, 678, 682 (1898).

[12] Id.at 678.

[13] Id.at 682.

[14] Id. at 653, 705.

[15] Id. at 655, 657-58, 667 (citing A.V. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, 173–177, 741 (1st ed. 1896)) (stating the English common law determined that a “British subject” was any person who was born in the British dominions, regardless of his parents’ nationality, except for any person 1) who was born in a hostile occupation when his father is an alien enemy or 2) whose father is an ambassador or other diplomatic agent to the crown by the sovereign of a foreign state).

[16]  SeeAziz Huq, Trump’s Birthright Citizenship Proposal, Explained by a Law Professor, Vox (Oct. 31, 2018, 2:50 PM), https://www.vox.com/policy-and-politics/2018/10/31/18047896/trump-supreme-court-birthright-citizenship.

[17] Id.

[18] Birthright Citizenship: Is It the Right Policy for America: Hearing Before the Subcomm. on Immigration and Border Security of the Comm. on the Judiciary, H. of Rep., 114th Cong. 53-57 (2015) (statement by Jon Feere, Legal Policy Analyst, Center for Immigration Studies).

[19] Id.

[20] See Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990);Lisa Christensen Gee, Matthew Gardner & Meg Wiehe, The Inst. on Taxation & Econ. Policy, Undocumented Immigrants’ State & Local Tax Contributions 2 (Feb. 2016), https://itep.org/wp-content/uploads/immigration2016.pdf; Devlin Hanson & Tyler Woods, Urban Inst., Demographic Trends of Children of Immigrants 2 (Oct. 2016), https://www.urban.org/sites/default/files/publication/85071/2000971-demographic-trends-of-children-of-immigrants_2.pdf; D’vera Cohn, John Gramlich & Jeffrey S. Passel, Number of U.S.-Born Babies with Unauthorized Immigrant Parents Has Fallen Since 2007, Pew Inst. (Nov. 1, 2018), http://www.pewresearch.org/fact-tank/2018/11/01/the-number-of-u-s-born-babies-with-unauthorized-immigrant-parents-has-fallen-since-2007; Yasmeen Serhan, America Isn’t the ‘Only Country’ With Birthright Citizenship, The Atlantic (Oct. 31, 2018), https://www.theatlantic.com/international/archive/2018/10/birthright-citizenship-other-countries-trump/574453/.

[21] Cohn, Gramlich & Passel, supra note 20.

[22] See id. (noting that this study is based on “unauthorized immigrant parents” whose legal status in the United States might have changed with time; therefore, this figure includes immigrant parents who might have come to the United States legally, but overstayed their visa at the time of birth).

[23] See John Burnett, Explaining ‘Chain Migration,’NPR (Jan. 7, 2018, 8:06 AM), https://www.npr.org/2018/01/07/576301232/explaining-chain-migration; see also Alan Gomez, What is ‘Chain Migration’ and Why Does President Trump Want to End It?, USA Today (Jan. 11, 2018, 10:39 AM), https://www.usatoday.com/story/news/world/2018/01/11/what-chain-migration-and-why-does-trump-want-end/1022479001/.

[24] The language “sons and daughters” is statutory language. Thus, this blog will use “sons and daughters” as opposed to the more gender neutral “children.”

[25] See Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990) (explaining that in addition to “immediate relatives,” there are four “family preference categories” for other family relations, which include 1) unmarried sons and daughters of citizens, 2) spouses and unmarried sons and unmarried daughters of permanent resident aliens, 3) married sons and married daughters of citizens, 4) brothers and sisters of citizens).

[26] Id.

[27] Hanson & Woods, supra note 20, at 2.

[28] Neil Schoenherr, WashU Expert: Ending Birthright Citizenship ‘Flatly Wrong,’ theSource(Oct. 30, 2018), https://source.wustl.edu/2018/10/washu-expert-ending-birthright-citizenship-flatly-wrong/; Serhan, supra note 20.

[29] See U.S. Const.amend. XIV, § 1; United States v. Wong Kim Ark, 169 U.S. 649, 682 (1898) (“The real object of the Fourteenth Amendment of the Constitution, in qualifying the words ‘All persons born in the United States’ by the addition, ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude. . . children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State. . .”).

[30] See U.S. Const.amend. XIV, § 1; Wong Kim Ark, 169 U.S. at 705.