President Trump did something earlier this week that many thought he was incapable of doing: he surprised. In an interview with Axios posted this past Tuesday, October 30, the President voiced his intention to issue an executive order ending the longstanding Executive Department practice of conveying automatic “birthright citizenship” on all persons born in the territorial United States (or in territories subject to the jurisdiction thereof), even if those persons are born to non-citizen aliens in the country illegally.
The President’s comments drew a predictable firestorm of opinions from both sides of the political aisle; almost everyone on the left — and a significant number of those on the right — led the charge in denouncing the move as unconstitutional, while many traditionalist and nationalist conservatives rushed to defend the President’s idea (or at least the proposition that birthright citizenship is not mandated by the Constitution).
Two important questions stem from the President’s comments: 1) would such an order be constitutional; and, 2) if not, is there a means of ending birthright citizenship short of amending the Constitution? The remainder of this piece will defend the uncompromising answers of “maybe” and “it depends.” For the most part, Supreme Court jurisprudence has upheld the right of birthright citizenship, even for the children of illegal non-resident aliens. However, there is a bevy of historical evidence that this was not the original meaning of the citizenship clause, and that the 14th amendment conferred no such right (beside, of course, the perhaps equally weighty evidence that it did).
The 14th Amendment provides for birthright citizenship, but it may not have when it was written.
The legality of the President’s proposed executive order hinges on the meaning of the citizenship clause in the first sentence of the first paragraph of the Fourteenth Amendment to the United States Constitution. The relevant provision reads:
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.
The amendment was passed in the wake of the Civil War to protect the now freed slaves from repression by southern state governments, as well as to overrule the contemptible Dred Scott decision that had held that slaves were not citizens. The first clause of the amendment had the specific purpose of ensuring that all former slaves and their children would be considered citizens of the United States, enjoying all the benefits and privileges that come with that status. But that may not have been its only meaning or effect.
The argument over the meaning of the clause centers on the phrase “. . . and subject to the jurisdiction thereof.” Proponents of birthright citizenship argue that the phrase simply refers to all persons subject to obeying the laws of the United States. Therefore, under this interpretation, if an illegal foreign national has a child in the territory of the United States, that child would instantly be “subject to” the laws of the United States and concordantly would be subject to its jurisdiction and automatically a citizen. This is the interpretation of the citizenship clause that has prevailed in the Executive Branch and in relevant jurisprudence on the subject for much of the past 100 or so years.
Opponents of birthright citizenship argue that the clause conveys citizenship only to persons born in the United States who do not owe an allegiance to any foreign power. Under this theory, a child born to an illegal foreign national would be considered a citizen of the home county of the foreign national mother, and, therefore, in a technical sense owes its allegiance to that foreign power and cannot be a citizen of the United States. Only children born on US soil to parents who in one form or another owe primary allegiance to the United States would automatically be conveyed citizenship under this formulation.
So, which theory is correct. Well, it depends who you ask, but it also depends on which framer of the amendment you look to for guidance and what kind of rationality and foresight you attach to their thinking.