Birthright citizenship is the concept under which a person automatically acquires citizenship of a country simply by being born there, regardless of the citizenship or immigration status of their parents. President Trump signed an executive order aimed at ending birthright citizenship for children born in the United States to illegal immigrants. Everyone loves the party game “Two Truths and a Lie.” Can you identify which of the following statements about birthright citizenship is false?
A. The 14th Amendment’s citizenship clause grants universal birthright citizenship to all children born on U.S. soil.
B. The Supreme Court case Wong Kim Ark (1898) has been used wrongfully to defend birthright citizenship under the 14th Amendment to virtually anyone born on U.S. soil.
C. Children of illegal aliens are subject to foreign powers, and therefore are not subject to the jurisdiction of the U.S. and are not constitutionally entitled to birthright citizenship.
Let’s take these statements one at a time:
A. LIE! The 14th Amendment’s citizenship clause states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The 14th Amendment does not say all people born in the U.S. are citizens. The second phrase is critical and is central to the ongoing debate over birthright citizenship. This clause was never intended to grant automatic citizenship to children born to individuals who are in the country illegally or only temporarily.
The 14th Amendment was ratified in 1868, specifically to grant citizenship to freed slaves and their children after the Civil War. At the time, Senator Jacob Howard, who authored the Citizenship Clause, clarified that it excluded persons who owed allegiance to a foreign power. This would include illegal immigrants or foreigners on temporary visas.
The phrase “subject to the jurisdiction thereof” means full, political allegiance to the United States, not merely being physically present. Individuals who enter the U.S. unlawfully are not fully subject to the jurisdiction of the U.S. They remain under the jurisdiction and allegiance of their home country. Therefore, their children should not automatically gain U.S. citizenship.
B. TRUTH! The case that is cited to defend over 125 years of the U.S. granting citizenship to virtually anyone born on U.S. soil is Wong Kim Ark. In that case, the Supreme Court ruled in favor of a Chinese man claiming citizenship after being born in the U.S. to immigrant parents. Although this case has been cited as legal precedent for universal birthright citizenship, Wong’s parents were in the U.S. lawfully and permanently. The high court’s decision pivoted on that distinguishable fact. The court held that “a child born in the U.S.” to alien parents who “have a permanent domicile and residence in the U.S. becomes at the time of his birth a citizen of the U.S.” The court’s opinion, therefore, leaves no doubt that its holding concerned only children of permanent residents. Wong Kim Ark did not involve illegal immigrants, since Wong’s parents were lawfully present at the time, so it doesn’t apply to children of illegal migrants.
C. TRUTH! The Civil Rights Act of 1866 acted as the blueprint for the 14th Amendment. The Act provided that “all persons born in the U.S. and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the U.S.” The phrase “subject to the jurisdiction thereof” in the 14th Amendment is read to exclude the same individuals who were excluded by the Act, those who are “subject to any foreign power.”
Historical evidence supports this. Before the adoption of the 14th Amendment, Justice Story wrote: “Persons who are born in a country are generally deemed to be citizens and subjects of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health, or occasional business.” Joseph Story, Commentaries on the Conflict of Laws § 48, at 48 (1834). After adoption of the amendment, Justice Miller explained if a traveler passing through or temporarily residing in the U.S. who has not been naturalized, and who claims to owe no allegiance to the U.S. Government, has a child born here, the child is not a citizen of the U.S. because it was not subject to its jurisdiction. Samuel F. Miller, Lectures on Constitutional Law 279 (1891). Legal presence in the U.S. and allegiance to the U.S. are constitutionally required for birthright citizenship.
Bottom Line: The 14th Amendment was never intended to grant automatic citizenship to the children of illegal immigrants or temporary visitors. These children are not subject to the jurisdiction of the U.S. and are not constitutionally entitled to birthright citizenship. The pathway forward is twofold: the Supreme Court must weigh in and narrow the application of Wong Kim Ark holding that children of people not lawfully present in the U.S. are not subject to the jurisdiction of the U.S.; and Congress must pass legislation defining “subject to the jurisdiction” to exclude children of illegal immigrants.