Revisiting the Scope of Birthright Citizenship
S E E D E D C O N T E N T
In his op-ed “ Can Trump Ban Birthright Citizenship? ” (March 17), Prof. Jed Rubenfeld argues that the 14th Amendment’s Citizenship Clause extends automatic citizenship to children born of parents not lawfully in this country. He maintains that, with limited historical exceptions, all born within our borders, irrespective of how they got here, are subject to U.S. law and entitled to citizenship at birth.
Yet that view can’t explain why American Indians were long excluded from citizenship even while they were subject to U.S. law. The Supreme Court has made clear Congress has unquestioned “plenary” authority to regulate Indian affairs. That the Legislature uses its authority sparingly to allow some degree of self-governance by the tribes doesn’t make them any less “subject to” American law. Indeed, a 1924 law was needed to confer U.S. citizenship to them.
Congress enacted the 1866 Civil Rights Act to establish birthright citizenship but excluded those “subject to any foreign power.” When the same legislators passed the 14th Amendment months later and submitted it to the states for ratification using the “subject to the jurisdiction” formulation, they surely had in mind the same exclusion. Statements of principal sponsors indicate that being subject to U.S. jurisdiction meant being subject to its “complete” jurisdiction, “not subject to any other power.”
State Department practice shortly after the amendment’s ratification confirms this understanding. In 1885 the department rejected the citizenship claim of Ludwig Hausding, born in Michigan to parents who hadn’t been naturalized. President Chester Arthur’s secretary of state reasoned that “the fact of birth, under circumstances implying alien subjection, establishes of itself no right of citizenship.” Similarly, in 1879, acting secretary Frederick Seward concluded that the American-born children of James W. Smith, a man who’d served in the Mexican army, would lose their American citizenship if their father had commenced service before the children were born, if Mexico attached Mexican nationality to them while minors or if they remained in Mexico and became its citizens. This contemporaneous practice undermines the claim of automatic citizenship at birth irrespective of what parents do to indicate their complete subjection to U.S. jurisdiction.
Children born to parents who have violated U.S. laws barring their entrance here have also not indicated their complete allegiance to this country, and are not entitled to citizenship at birth absent legislation so providing.
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I think this letter by two NYU Law Professors zeroes in on the fatal flaw in the 14th Amendment grants birthright citizenship to anyone born on American soil argument. If that were true, the Indian Citizenship Act was totally superfluous. If birthright citizenship exists ,all Indians would have been American Citizens since the Amendment was passed. They weren't. It took until 1924 for that to occur.
It is possible to write a superfluous law.
As a recipent of birthright citizenship I personally am glad it exists. Decades later it even allowed me to sponsor my Dad for US citizenship so he could move to Florida and leave behind these Canadian winters
You are one of many who are glad it exists. citizen birth tourism is its own industry in China,
Although that wasn't the case for myself, I'm sure others are indeed glad for that reason
sorry, but that concept contradicts the basic modern conservative principle of no punishment is due if someone has already gotten away with the crime ...
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What’s needed is a clearer amendment on the topic. The current amendment lacks any details supporting some of the interpretations we see. Any interpretation other than basic birthright citizenship leads to completely untenable problems. It would call into question the citizenship of almost anyone.
For example, I was born in America, and so were my parents. But one of my grandfathers was not. I cannot prove he was in the country legally, so does that mean his children were not citizens? The woman he married (my grandmother) was born here, but neither of her parents were. Again, I cannot prove they were here with permission.
Therefore, am I not a citizen? To what country would you deport me? No country on Earth is going to recognize me as a citizen.
Not at all. Removing "birthright citizenship" would be prospective. For instance, anyone born on April 1, 2025 would not be American citizens merely be virtue of being born on American soil to non-citizens. Congress would retain the right to define citizenship.
Therefore, am I not a citizen?
Not that it would ever matter, but many, if not most, nineteenth and twentieth century immigrants became naturalized citizens. All of mine did and their records can be found online pretty easily.
Possibly. If so, it might instantly make millions of people who actually were born here into citizens. It wouldn't be fair to hold them to a standard freshly created.
In 1866, Senator Jacob Howard (co-author of the 14th Amendment) clearly spelled out THE INTENT of the 14th Amendment by stating:
"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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."
This understanding was reaffirmed by Senator Edward Cowan, who stated:
"[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word..."
The phrase "subject to the jurisdiction thereof" was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.
The correct interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.
In the 1884 Elk v.Wilkins case12, the phrase "subject to its jurisdiction" was interpreted to exclude "children of ministers, consuls, and citizens of foreign states born within the United States." In Elk, the American Indian claimant was considered not an American citizen because the law required him to be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."
The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe "direct and immediate allegiance" to the U.S. and be "completely subject" to its jurisdiction. In other words, they must be United States citizens.
The problem with all of that, is that they could have put those qualifiers into the amendment, but they didn't. It's not as if there was a word limit.
Rules of construction will require that those words be accepted at face value absent some finding of ambiguity. I think it's impossible to say exactly how the Court would find on that point. The Court would certainly try to understand the words as they were understood at the time, but one man's opinion - even the man who wrote the law - is not binding or anything. What did everyone else think when they voted for it?
The Court can even into a sense of how the country feels or felt about a specific issue. What is our tradition? In short, this could go a lot of different ways.
Conversely, I imagine there are many descendants from America who went abroad generations ago and started lineages without being legal foreign citizens themselves. If European countries took the same stance would America accept back those lineages of people who may have never even set foot in the US?