Does the 14th Amendment Require Birthright Citizenship?

John G. Malcolm / October 13, 2015

Immigration is always a hot-button political issue, and no more so than in the months leading up to a presidential election. From sanctuary cities to Deferred Action for Childhood Arrivals (DACA) to birthright citizenship, what can and should be done to fix our current system is on the forefront of the minds of many politicians and voters.

The issue of birthright citizenship is not well understood by most people. It has long been accepted by many people that the Constitution automatically bestows citizenship on anyone born on United States territory, even if the parents of that child are illegal immigrants. Some notable scholars, however, have questioned whether this is so, and critics of birthright citizenship believe that it encourages foreigners to come to America, legally or illegally, so that their future children can become U.S. citizens, along with all the benefits that citizenship confers, simply by being born here.

The dispute has important consequences, because if those who believe that the Constitution provides for birthright citizenship are correct, it would require a constitutional amendment—not an easy undertaking, to say the least—to change it. If they are wrong, then Congress could simply pass a statute declaring that the children of illegal immigrants who are born in this country are not citizens.

The root of this dispute comes from Section 1 of the 14th Amendment, which states: “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.” There is no question that this section was meant to overturn the Supreme Court’s opprobrious and infamous decision in Dred Scott v. Sandford (1857), in which a majority of the Court held that slaves were property and that black people (even those who were not slaves) and their children could never be citizens even if they were born in this country. After ratification of the Fourteenth Amendment, citizenship would no longer be denied to someone because of his or her race or ethnicity.

But did the Citizenship Clause of the Fourteenth Amendment go farther? Because the section makes no reference to the alien status of the parents of the child, many believe that the Fourteenth Amendment enshrines the rule of jus solis (citizenship defined by birthplace), rather than the rule of jus sanguinis (citizenship defined by blood; in other words, citizenship defined by the parents’ citizenship), which is still the rule in many countries. Although the Constitution originally required citizenship for federal office, it does not define the term.

There is also the curious phrase “subject to the jurisdiction thereof.” Some scholars argue that this language excludes the children of aliens from citizenship because they owe allegiance to another nation and are not “subject to the jurisdiction” of the United States, at least as that phrase was understood in 1868, a time when, unlike today, there were no restrictions on immigration. Supporters of birthright citizenship contend, on the other hand, that this phrase means only that such aliens be governed by American law when they are in this country, excluding only a small number of discrete categories of people such as the children of foreign diplomats and invading enemy soldiers who are in, but at war with, the United States.

In 1868, this list also included the children of Native Americans living on tribal lands who were considered semi-sovereign people, but in 1924, Congress passed a law granting them citizenship.

In United States v. Wong Kim Ark (1898), the Supreme Court held that a child of Chinese parents born in San Francisco was a citizen who could not be barred from re-entry into the United States under the xenophobic Chinese Exclusion Act. In that case, however, it was clear that the Chinese parents were lawful, permanent residents of the United States at the time their child was born.

Opponents of birthright citizenship claim that the parents in that case owed their complete allegiance to the United States, not China, but that the same would not be true for the children of parents who are not lawfully present in this country or who are only temporary visitors at the time of the birth.

They also contend that any language in the Wong Kim Ark opinion suggesting that being born in the United States alone would suffice to confer citizenship was pure dicta—superfluous language not necessary to the holding and, hence, not binding precedent.

Which side is right? Does the 14th Amendment Require Birthright Citizenship? To hear more on this topic, please join us at The Heritage Foundation at 11:00 a.m. on Friday, Oct. 16, 2015 (or watch online), for a lively and scholarly debate between John Eastman and James Ho.