This article originally appeared in the Online Library of Law & Liberty and has been updated to reflect recent developments.
Candidate Donald Trump’s recent proclamation that he is opposed to so-called “birthright citizenship” for the offspring of illegal aliens born in the United States has, like many of his campaign statements, set off hysterical paroxysms of outrage and protest. I do not support Donald Trump for President, but much of his appeal lies in the fact that he is willing to address taboo subjects in a way that the public—tired of candidates and elected officials cowed by rigid protocols of political correctness—finds refreshing. The topic of “birthright citizenship” is a perfect example. Within a week of issuing his immigration reform plan calling for the end of “birthright citizenship,” there has been more discussion (fueled by considerable popular interest) of this poorly understood aspect of immigration policy than I can remember in my lifetime. Whether or not one agrees with Trump’s platform, one has to concede that he is advancing a national conversation on a critically important issue.
On Face the Nation on August 24, Sen. Ted Cruz re-affirmed that he is opposed to “birthright citizenship” as a policy matter—a position he has held since 2011—and declared that it should be repealed, either by an act of Congress or a constitutional amendment (both of which are, in his opinion, “good faith positions”). Other candidates disagree, or decline to take a position.
The issue is whether children born in the United States—even if their parents are foreign nationals who entered this country illegally—automatically become citizens. Current law supposes that they do—a concept termed “birthright citizenship.” Many people erroneously think this concept is dictated by the Constitution or enshrined in a U.S. Supreme Court decision. Not so. Section 1 of the 14th Amendment—the 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 and of the State wherein they reside.” (Emphasis added.) The origins of this language are a bit hazy, but it must be recalled that the purpose of the 14th Amendment was to correct the infamous Dred Scott v. Sandford decision (1857) and recognize citizenship for the newly freed slaves (but not members of Indian tribes living on reservations). The language of the Citizenship Clause derived from the Civil Rights Act of 1866, enacted by the same legislators (the 39th Congress) who framed the 14th Amendment. The Civil Rights Act of 1866 conferred citizenship on “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed….” (Emphasis added.) Foreign nationals resident in the United States, and children who become citizens of a foreign country at birth (by virtue of their parents’ citizenship) would obviously be excluded from this definition.
Granted, the language of the Citizenship Clause deviates slightly from that of the Civil Rights Act of 1866, but there is no compelling evidence that the 39th Congress intended a different meaning. In fact, the sponsor of the Citizenship Clause, Senator Jacob Howard (R-MI), stated that its language “is simply declaratory of what I regard as the law of the land already,” explaining that “This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers…..” (Emphasis added.) The record of the debate in 1866 is illuminating. When Senator Lyman Trumbell (D-IL), Chairman of the Judiciary Committee (and a key figure in the drafting and adoption of the 14th Amendment), was asked what the phrase “and subject to the jurisdiction thereof” meant, he responded: “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” (Emphasis added.) Only U.S. citizens owe “complete allegiance” to the United States. Everyone present in the United States is subject to its laws (and hence its “jurisdiction” in a general sense), but only citizens can be drafted or prosecuted for treason if they take up arms against the United States.
Senator Howard agreed with Trumbell’s explanation: “I concur entirely with the honorable Senator from Illinois [Trumbell], in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, …; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” (Emphasis added.) This exchange supports very strongly the conclusion that the Citizenship Clause was intended to mean the same as the Civil Rights Act of 1866—excluding children born in the United States to foreign nationals (i.e., resident aliens). Even Ilya Shapiro, from the pro-immigration Cato Institute, concedes that “the Fourteenth Amendment’s enactors probably didn’t intend birthright citizenship for illegal immigrants.”
Parsing the entire debates over the Citizenship Clause in the 39th Congress admittedly presents some occasional inconsistencies and ambiguities, leading reasonable people—on both the Left and Right—to disagree about the meaning of the Citizenship Clause. Conservatives scholars such as John Eastman, Lino Graglia, Edward Erler, and even former Attorney General Edwin Meese, have advocated in opposition to birthright citizenship. Notably, this point of view is shared by liberal scholars such as Yale Law School Professor Peter Schuck, who in 1985 coauthored a book with University of Pennsylvania political scientist Rogers Smith, entitled Citizenship Without Consent: Illegal Aliens in the American Polity (Yale University Press) making the same argument now embraced by Trump. Federal Judge Richard Posner has called the current practice of birthright citizenship “an anomaly” that Congress “should rethink” because it “makes no sense.” Posner, never bashful, went on to state (in a published decision, Oforji v. Ashcroft, 354 F. 3d 609 (7th Cir. 2003)) that “We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.” Posner volunteered that he “doubt[ed]” whether a constitutional amendment was necessary to change the current practice of birthright citizenship.
Now, in fairness, other advocates take a contrary position, including respected conservative attorney James Ho. Recently, U.C. Berkeley law professor John Yoo and constitutional litigator David Rivkin have concurred with the position that the Citizenship Clause confers birthright citizenship, which can be eliminated only by constitutional amendment. But a considerable body of scholarship supports the view that the Citizenship Clause does not compel birthright citizenship, and that the current practice could be corrected by legislation, pursuant to Congress’ power under Section 5 of the 14th Amendment and Article I, Section 8, Clause 4. Contrary to the assertions of some commentators (including the Wall Street Journal, and Ben Domenech, publisher of The Federalist), an amendment of the 14th Amendment is not required. In fact, such legislation has been introduced in the past (e.g., S.1351 (1993), H.R.1567 (2003), H.R.140 (2015)), and supported by both Republicans and Democrats—including former Senate Majority Leader Harry Reid (D-NV), who stated in 1993 that “no sane country” would grant citizenship to the children of illegal immigrants solely because they were born on American soil. In Oforji, Judge Posner stated that “I hope [H.R.1567] passes.”
The U.S. Supreme Court has never ruled in favor of birthright citizenship for the children of illegal immigrants. The oft-cited United States v. Wong Kim Ark (1898) involved the offspring of legal Chinese residents. And the frequently cited language in Plyler v. Doe (1982)—a 5-4 decision written by the notorious activist Justice William Brennan, hardly a credible authority—is dicta contained in a footnote! Automatic birthright citizenship for tourists and illegal immigrants is an anomaly; the United States and Canada are the only developed countries in the world to recognize it. No European country does. American voters overwhelmingly oppose birthright citizenship, almost 2-1 according to a recent Rasmussen poll. Regardless whether one supports Donald Trump for President, he has raised an important issue and provoked a long overdue discussion of the subject of birthright citizenship. For that, he deserves credit. Taboos inhibit the type of robust debate necessary for democracy to flourish.