Birthright Citizenship: It’s Time to Settle the Issue

President Trump caused quite a stir late last month when he announced his intent to sign an executive order ending birthright citizenship for U.S.-born children of noncitizens. Both sides of this debate cite legislative history and Supreme Court cases in support of their positions.  Tonight, I’ll try to cut through the fog and lay out the issues clearly for you.

We start with the pertinent words of the 14th Amendment: “All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States....”  The immediate purpose of this provision was to reverse Dred Scott and make it clear that freed slaves and their children were in fact U.S. citizens. 

But what do the words “subject to the jurisdiction thereof” mean?  Proponents of birthright citizenship for the children of illegal aliens say it simply means that a person is legally required to obey U.S. laws and can be punished if they break those laws.  This seems to me to read “subject to the jurisdiction thereof” right out of the Constitution.  Of course anyone, except maybe diplomats, can be given a speeding ticket.  I don’t see how that should confer citizenship. 

It seems to me that the critics of birthright citizenship have the better argument – that “subject to the jurisdiction thereof” means that the person owes their political allegiance to the United States.  Diplomats, as well as students and others here on temporary visas, do not owe their political allegiance to the United States.  If they happen to give birth while here, their children do not owe political allegiance to the United States, either, and thus are not ‘subject to the jurisdiction of the United States’ as those words are arguably properly read.  It is not controversial that diplomats’ children born in the United States are not citizens of this country. 

Proponents of birthright citizenship point to statements made during the congressional debates on the 14th Amendment by Pennsylvania Senator Edgar Cowan who opposed the Amendment because, as he understood it, the amendment would give U.S.-born children of Chinese laborers and other noncitizens citizenship even though they did not owe allegiance to the United States.  On the other hand, Senator Lyman Trumbull of Illinois expressly said that ‘subject to the jurisdiction of the United States’ included not owing political allegiance to another country.  No wonder Justice Clarence Thomas doesn’t like legislative history and says cases should be decided by what is enacted rather than by what is intended.

This brings us to the dueling Supreme Court cases, none of which really decide the issue.  This is because the issue of birthright citizenship for U.S.-born children of aliens not legally resident in the United States has never been squarely presented or squarely decided by the Supreme Court.  All the cases involve some other fact pattern making the loose statements about birthright citizenship in those cases what lawyers call dicta – extraneous verbiage that does not have the force of law.

Proponents of birthright citizenship point to United States v. Wong Kim Ark, an 1898 case which made broad statements about “birth within the territory” but only decided that the children of lawfully resident immigrants are U.S. citizens.  Proponents also cite Plyler v. Doe from 1982 which gave the children of illegal aliens the right to a public education, but the Court did this because the Equal Protection Clause of the 14th Amendment applies to all ‘persons’ in the U.S., not just citizens.

On the other side of the ledger, critics of birthright citizenship cite the 1873 Slaughter-house Cases in which the Court wrote that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.”  In 1884, the Supreme Court in Elk v. Wilkins denied the birthright citizenship of American Indians, saying being born in the territory of the United States was not enough to confer citizenship and that American Indians were not ‘subject to the jurisdiction of the United States’.  This ruling was later changed by statute.  There are other cases, but you get the idea. 

Critics of birthright citizenship say the doctrine was cooked up by the State Department not all that long ago, and that what the executive branch has done can be undone by executive order. President Trump just recently reiterated his intent to sign an order ending birthright citizenship and said the issue would probably end up in the Supreme Court. 

Estimates vary, but there are at least 4 million children of illegal aliens who have received birthright citizenship. The trend in other Western countries is away from birthright citizenship while, in our country, birth tourism has become an industry, with birthing centers for Russian and Chinese women making headlines.

My personal preference would be for Congress to settle the matter by passing a law.  Article 1, Section 8 of the U.S. Constitution gives Congress the power to establish a uniform rule of naturalization, to say who and who does not get to be a citizen.  Congress should step up to the plate, fulfill its constitutional duty, and settle the issue of birthright citizenship.  The last stop in that process would probably be the Supreme Court, but at least the duly elected representatives of the people would have spoken.