American Birth on American Earth – Does That Make You American?

Among the top agendas of the current Trump administration is the implementation of a series of reforms to conventional immigration law and practice. These reforms include a sharp uptick of arrests and deportations for illegal immigrants, attempts to ban entry to certain Muslim countries, and, of course, plans to build an enormous wall across the country’s southern border. However, few of these policies are sure to spark a legal debate as intense as that which will potentially result from President Trump’s plan to abolish “Birthright Citizenship.”

Birthright citizenship in the United States means that U.S. citizenship is automatically granted to any person born within and subject to the jurisdiction of the United States. As will be discussed below, this policy is rooted in the text of the Constitution. However, President Trump would like to do away with it. In a recent interview with Axios, the President said: “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”[1] President Trump’s plan is to issue an executive order essentially abolishing the concept of Birthright citizenship. Critics of the president were quick to condemn what they view as yet another push against traditional American policy toward immigration.[2] But it isn’t only critics who are taking issue with the President’s latest proposal. Speaker of the House Paul Ryan, speaking on Kentucky’s WVLK radio station had this to say in response: “[Y]ou obviously cannot do that, . . . [a]s a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.” Speaker Ryan was referring to the wording in the Constitution’s Fourteenth Amendment which begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The Constitution’s language does, in fact, seem fairly explicit. According to its plain reading, any person, born upon the soil of the United States of America should have the constitutional right to citizenship. The clause has an interesting, if not egregious history. The Citizenship Clause was meant as a direct rebuke to the infamous decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), in which the Supreme Court held that that people of African descent born on our soil whose ancestors were slaves could not be citizens, even if they were free. In response to Dred Scott, Congress passed and the states ratified the 14th Amendment, its very first sentence stating unambiguously: “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.”

However, although the plain text of the Constitution does seem to unequivocally suggest that anyone born on American soil are eligible for citizenship, there actually are strong arguments on the other side. The opposing position would derive from an alternative interpretation of the words “and subject to the jurisdiction thereof.” The question becomes, can an individual who is situated on American soil, but is neither a citizen nor a legal resident, be considered “subject to the jurisdiction” of the United States? This question is not nearly as simple as most initially assume and it requires careful analysis. Black’s Law Dictionary defines “ jurisdiction” as “[a] government’s general power to exercise authority.” This would support the argument that any person situated upon American soil qualifies as being “subject to” the country’s jurisdiction, since, as soon as one enters U.S. territory, the United States government has general power to exercise authority toward them. The children of such individuals should thus be granted citizenship. However, there are some compelling counter-arguments. On his website, Congressman Steve King, Representing the 4th District of Iowa, makes the following argument. If merely being within American territory places subjects one to U.S. jurisdiction, then isn’t the Constitution’s language superfluous? Wouldn’t it have sufficed for the Drafters to merely have written “All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside?” The question then arises, so what does the Constitution mean? Why did the Drafters insert six additional words into the Constitutions text which don’t appear to have any significant import? There are various possible explanations offered, most of them hinging on the historical background of the Fourteenth Amendment. That background begins with the infamous decision Dred Scott v. Sanford 60 U.S. (19 How.) 393 (1857). In 1857, the Dred Scott decision had held that no black of African descent (even a freed black) could be a citizen of the United States. The Fourteenth Amendment was thus necessary to overturn Dred Scott and to settle the question of the citizenship of the newly freed slaves. The Fourteenth Amendment effectively made United States citizenship primary and state citizenship derivative. The primacy of federal citizenship made it impossible for states to prevent former slaves from becoming United States citizens by withholding state citizenship. States could no longer prevent any black from United States citizenship or from state citizenship either.[3]

It is important to note that a primary function of the Fourteenth Amendment was to constitutionalize The Civil Rights Act of 1866 which asserted that “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

One noticeable difference between the language of the Civil Rights Act and the Fourteenth Amendment is the Fourteenth Amendment’s omission of the phrase “Indians not taxed.” Senator Jacob Howard of Ohio, the author of the Citizenship Clause, explained that “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.” This statement, made by the very one who drafted the Fourteenth Amendment, seems to clearly indicate that the Civilization Clause does not, in fact, support the notion that anyone born on American soil is automatically American.

Adding to this, Senator Lyman Trumbull, who co-authored the Thirteenth Amendment, commented that the terminology “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else . . . subject to the complete jurisdiction of the United States.” This was his explanation for the Fourteenth amendment’s exclusion of “Indians not taxed.”

What would emerge from this line of interpretation is that the Fourteenth Amendment actually requires two separate standards in obtaining U.S. citizenship:

  1. born or naturalized in the United States and
  2. subject to its jurisdiction.

A case that is often cited in relation to this question is United States v. Wong Kim Ark, 169 U.S. 649 (1898). The facts in Wong Kim Ark, revolve around a young man, Wong Kim Ark, who was born in San Francisco, California in 1873 to Chinese parents. His parents were not United States citizens and eventually returned to China in 1890. Wong Kim Ark visited China briefly in 1890, and was allowed to return based on his status as a native-born citizen. He travelled again to China in 1895, but was denied permission to enter the country on the grounds that he was not a U.S. citizen. Congress had previously passed the Chinese Exclusion Acts, which prohibited Chinese people who were not United States citizens from entering the country. Wong Kim Ark brought suit to obtain entrance to the country. The district court found that he was a citizen and therefore exempt from the Exclusion Acts. The Supreme Court then granted certiorari on the government’s appeal. Writing for the majority, Justice Gray ruled in favor of Ark. He reasoned that the phrase “subject to the jurisdiction thereof” should be analyzed based upon the common law in place when the Constitution was written. Longstanding English common law dictated that children born in England were considered citizens unless they were children of foreign ambassadors or hostile enemy forces. He further explained that if Indians are to be excluded from the Citizenship Clause (as was ruled in a previous case titled Elk v. Wilkins, 112 U.S. 94 (1884)) this is because the Indian tribes are considered to be foreign powers based on the language of the Constitution.

This ruling is frequently cited in support of a pro Birthright citizenship position. The problem is that the wording in the case itself is confusing as to the extent of its ruling. The language used in the majority opinion is [t]he fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory,. . . . including all children here born of resident aliens. Id at 693. The language seems to indicate that even the majority maintains that the parents must have had status as residents.

In conclusion, it does not appear that, at the moment, there is any clear cut interpretation for the phrase “subject to the jurisdiction thereof.” The best possible resolution would be that, rather than President Trump issue an executive order, to treat this as a constitutional question to be finally clarified and decided by the Supreme Court.

  1. Jonathan Swan, Stef W. Kight, Exclusive: Trump targeting birthright citizenship with executive order, Oct 30, 2018 available at https://www.axios.com/trump-birthright-citizenship-executive-order-0cf4285a-16c6-48f2-a933-bd71fd72ea82.html

  2. Guillermo Contreras and Elaine Ayala, Trump’s quest to end birthright citizenship questioned, condemned in San Antonio, Oct. 30, 2018 available at, https://www.expressnews.com/news/local/article/Trump-s-quest-to-end-birthright-citizenship-13348889.php
  3. Edward Erler, Defining Citizens: Congress, Citizenship, and the Meaning of the Fourteenth Amendment, Feb 17, 2011, available at https://www.heritage.org/the-constitution/report/defining-citizens-congress-citizenship-and-the-meaning-the-fourteenth

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