The 14th Amendment to the Constitution has been part of our Constitution for 150 years, but the “birthright citizenship” language it contains has never been directly addressed by the United States Supreme Court; the only time it even partially dealt with the issue was in 1898 (in a case that involved foreign parents of a child born in the U.S. who were lawfully in the country). The Congress, which could legislatively define and limit the amendment’s problematic terms, has never developed the political backbone to do so.
President Trump has stepped into this vacuum declaring that he will, by executive order, clarify and limit what it means for a person born in the United States, to also be “subject to the jurisdiction thereof” as the amendment requires. This point bears repeating: in order for a person to be considered a U.S. citizen by virtue of being born within the borders of our country, they must also be subject to our sovereign power.
The flash point here is clear: does a child born to a mother who is in the United States illegally, gain American citizenship by the sole fact of having been delivered on our side of the border?
To understand and answer this question, it is necessary to consider the historical and legal parameters within which both our Constitution and the 14th Amendment were crafted, considered and interpreted.
As a starting point, it is important to understand that there is absolutely nothing in the legislative history surrounding the adoption of the 14th Amendment that supports the interpretation that it contemplated granting citizenship to children born of mothers unlawfully in our country. In fact, quite the opposite becomes clear if one studies the records of the actual debates accompanying adoption of the proposed amendment by the Congress.
There is, for example, argument by the very drafters of the language establishing that it was not intended to grant citizenship to foreigners. The amendment’s clear and overriding purpose was to ensure that emancipated slaves born in the U.S. would be considered citizens; it had nothing to do with children born of non-citizens while in our country.
Furthermore, standard rules of legislative interpretation mandate that the amendment’s language in this regard must be afforded meaning consistent with relevant history, law, and intent. As noted in the Heritage Foundation’s Guide to the Constitution, much of the law and rules of interpretation employed by the drafters of the amendment drew on British canons of law, including the seminal treatises of law by Blackstone that declared birthright citizenship a feudal concept and therefore inapplicable to and incompatible with our form of government. This clearly supports the argument that in the drafting of the language of the 14th Amendment, births by illegal aliens were not “subject to the jurisdiction” of the country and therefore not entitled to enjoy the privileges of citizenship.
Thus, even though at the time of America’s split with Great Britain in the last quarter of the 18th Century, our then-mother country recognized citizenship by birthright, the principle was not incorporated by language or intent into our constitutional system of governing; and the 14th Amendment made this clear.
Congress to this point has been unwilling to address the problem. It could do so, for example, by passing legislation making clear that the phrase “subject to the jurisdiction” of the United States, means persons lawfully in the U.S. and therefore subject to our nation’s sovereignty rather than the sovereignty of the country in which they are lawful citizens. Or Congress could, by super-majority in both houses (and after ratification by three-quarters of the states), amend or outright repeal the 14th Amendment.
Absent a successful constitutional amendment, any legislation affecting the meaning of the birthright citizenship language certainly would be challenged in court, and likely quickly reach the Supreme Court. An executive order signed by President Trump to do the same thing, would similarly be challenged and present the question to the Court.
Trump may not have unanimous public support for taking action in this regard, but history and the clear meaning of the Constitution’s provisions are on his side. And, at a time when clarity in immigration policy and law are ever more critical, having a president willing to do something to move the ball forward is refreshing.