In an interview with Axios, President Trump stated that his staff is preparing an executive order to end birthright citizenship in the U.S. As you might expect, this has led to a lot of discussion and debate around both the constitutional basis of birthright citizenship and the authority of the President to change this policy via executive order. Unfortunately, most of what I’ve heard about this has very little to do with the Constitution and U.S. law. Since we are here to read and study the Constitution, let’s take a look at birthright citizenship for ourselves.
Most of the debate around birthright citizenship centers around the 14th Amendment’s “Citizenship Clause”. The citizenship clause, while only one small part of the 14th Amendment, was meant to deal with serious issues in the south after their loss in the Civil War and the passage of the 13th Amendment which banned slavery. Some southern states passed laws infringing on the rights of newly freed slaves. These “Black Codes” restricted those newly freed slaves from voting, serving on juries, working in certain occupations, their ability to marry, and more. While the slaves had been freed, in many of the former Confederate States they were not treated as citizens. Enter the 14th Amendment.
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.
By ensuring that the newly freed slaves (at least the ones who were born in America) were citizens, they received the protection of Article IV, Section 2, removing any question that these Black Codes were constitutional.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Birthright Citizenship
Contrary to what you’ve been told, probably by the majority of people who have commented on this subject, the 14th Amendment does not grant citizenship to anyone who is born in the United States; they must also be subject to the jurisdiction of the United States as well. So what does it mean to be subject to the jurisdiction of the United States?
SUBJECT: Being under the power and dominion of another; as, Jamaica is subject to Great Britain.
JURISDICTION: Power of governing or legislating. The legislature of one state can exercise no jurisdiction in another.
Webster’s 1828 Dictionary
To be subject to a jurisdiction means to be under the power and dominion of another of a governing body. While a person who is living in the United States is subject to our laws, is that what Congress meant by this language? Not according to the man who authored the amendment to the bill that eventually became the 14 Amendment, Senator Jacob Merritt Howard of Michigan. He proposed to change the language of the proposed amendment to include “and subject to the jurisdiction thereof”,
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
Congressional Globe p. 2890
This idea that the meaning of “subject to the jurisdiction thereof” meant those who are not citizens of another nation is summed up quite nicely by Senator Reverdy Johnson of Maryland. I only wish they had used his language rather than Senator Howard’s.
Now all this amendment provides is, that all persons born in the United States and not subject to some foreign Power — for that, no doubt, is the meaning of the committee who have brought the matter before — shall be considered as citizens of the United States.
Congressional Globe p. 2893
Since it is well-established legal precedent that when ambiguity exists in the law, one must determine, as best as possible, the intent of those writing the law. There is no possible way to interpret the language of Senator Howard, who wrote the language in question, to mean anything other than those who are born in the United States and are not subjects (citizens) of another nation. This is confirmed in no uncertain terms by Senator Johnson. However, it is quite obvious that the research and understanding of this language is beyond the comprehension of many pundits, politicians, and justices in this nation.
For decades, it has been claimed by many that the simple act of being born within the borders of the United States granted you the privileges of citizenship. However, no such language can be found in either the Constitution or federal law. The only case I could find regarding the question of citizenship for those born to foreigners is the 1898 supreme Court case United States v. Wong Kim Ark. In this case, the court decided that the child of a Chinese couple with permanent residency in the United States but “subject to the Emperor of China”, was a citizen. In the opinion of the court, permanent residency status means the resident is subject to the jurisdiction of the United States. By history, precedent, and sound jurisprudence, that is a weak position at best. As we’ve already discussed, the understanding of the text when it was ratified was that “subject to the jurisdiction thereof” excluded both foreigners and aliens. So if both the Constitution and federal law say that only persons who are subject to the United States at birth are citizens, why does the government grant citizenship to those who are not subject to them? Good question. Unfortunately, the answer is we don’t follow the law anymore, or at least not when it’s inconvenient for certain political figures and their supporters.
Executive Order
(a) a person born in the United States, and subject to the jurisdiction thereof;
This brings us back, finally, to the President’s plan to end birthright citizenship by executive order. I have found no disagreement that Congress could pass a law amending 8 U.S. Code § 1401 to clarify that “subject to the jurisdiction thereof” means they are not subject to the jurisdiction of another nation, but can the President? Well, the case can be made that since the purpose of the Citizenship Clause, as stated by those who framed it, was to limit citizenship to those born in the United States and not subject to a foreign power. Therefore, in order to execute the laws of the United States, the President could direct those in the executive branch to only grant citizenship to those who meet the full requirements of the 14th Amendment to the Constitution. Would it be challenged in court? Almost assuredly. Would the federal courts follow the stated meaning of the 14th Amendment? I am much less sure about that, and I’m almost positive the the supreme Court would not.
