President-elect Donald Trump has once again promised to “end birthright citizenship” for the U.S.-born children of illegal and nonimmigrant aliens.
But can he do this without amending the Constitution?
Yes, he can—at least according to the original meaning of the 14th Amendment’s citizenship clause, which, as I explained at great length in an earlier law review article and a pair of Heritage Foundation Legal Memos, is far different from the interpretation offered by most modern scholars.
It’s certainly true that today, the mistaken majority view of the 14th Amendment’s citizenship clause is that it grants what essentially amounts to universal birthright citizenship—in other words, that virtually all children born within the geographical boundaries of the United States are citizens, irrespective of their parents’ immigration status.
It’s also true that the federal government has been abiding by a policy of treating the U.S.-born children of illegal and nonimmigrant aliens as citizens, even though it is not required and is a change from the way the 14th Amendment was applied after it was ratified in July 1868.
Properly understood from an originalist perspective, however, nothing in the Citizenship Clause actually requires this practice. In fact, it’s quite the opposite. Supporters of birthright citizenship ignore the second, critical condition in the amendment of being “subject to the jurisdiction” of the United States.
While the citizenship clause eliminated race-based barriers to birthright citizenship, its framers and ratifiers manifestly intended that its language restrict birthright citizenship based on the strength of a person’s relationship to the United States and the lack of a relationship with another nation.
For many decades after the amendment’s ratification, that was precisely how the nation’s courts and constitutional scholars also understood the citizenship clause to work.
The government today doesn’t need to amend the Constitution to restrict citizenship for the U.S.-born children of illegal or nonimmigrant aliens. It can just simply stop abiding by a broad policy of universal birthright citizenship that the Constitution never required in the first place.
Understanding the Purpose of the Citizenship Clause
In the infamous 1856 case of Dred Scott v. Sandford, the Supreme Court determined that the U.S.-born descendants of African slaves were not and never could become citizens. That holding created a previously nonexistent permanent barrier to citizenship based on a person’s race or ancestral origin. In actual effect, it relegated black people—including those born in the United States and who logically owed allegiance to no other sovereign but the United States—to the status of perpetual aliens in the nation where they were forced to live and die.
After the Civil War, in a direct attempt to override Dred Scott and expand citizenship to the newly freed slaves, Congress passed the Civil Rights Act of 1866. That act defined the parameters of birthright citizenship for the first time in U.S. history: “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
Congress drafted and passed the 14th Amendment, which was subsequently ratified, primarily to strengthen the protections of the Civil Rights Act by writing them into the Constitution itself. Under the 14th Amendment, citizenship belongs to “all persons born … in the United States, and subject to the jurisdiction thereof.”
Some advocates of universal birthright citizenship argue that because the 14th Amendment’s definition of citizenship differs from that of the Civil Rights Act, Congress meant to override the Civil Rights Act and adopt the English common law’s jus soli (“right of soil”)—that is, the principle of citizenship by virtue of birth within a country’s geographical boundaries alone.
The legislative history of both the Civil Rights Act and the 14th Amendment strongly undercuts that argument. The debates around the language in both cases show that while Congress sought to cement birthright citizenship for the freed slaves and remove race-based barriers, it simultaneously sought to exclude from birthright citizenship broad categories of individuals who maintained only a transient or limited allegiance to the nation.
As several congressmen put it, birthright citizenship was reserved for those who, like the freed slaves, were subject to “the complete jurisdiction of the United States.” To be “subject to the complete jurisdiction of the United States” meant that a person was not meaningfully subject to a foreign power, such that his or her allegiance to the United States was divided or qualified.
Sen. Lyman Trumbull, R-Ill., a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” meant not owing allegiance to any other country. It seems obvious that a child born to Mexican citizens illegally in the U.S. is a citizen of Mexico, owes his political allegiance to Mexico, and does not meet this jurisdictional requirement in the amendment.
The change in language between the statutory definition in the Civil Rights Act and the constitutional definition in the 14th Amendment was clearly and exclusively the result of disagreements over how best to exclude tribal-affiliated Native Americans from birthright citizenship.
It in no way reflected a desire by Congress to fundamentally change the principles of citizenship initially laid out in the Civil Rights Act.
Moreover, the purpose of the 14th Amendment wasn’t to override or counteract the Civil Rights Act, but to constitutionally solidify its provisions. The statutory and constitutional definitions of citizenship existed side-by-side for the next 70 years in a single legal framework and were roundly considered by contemporary courts and legal scholars as being complementary, not competitive—a person who was “subject to a foreign power” for purposes of the Civil Rights Act was not “subject to the jurisdiction of the United States” under the 14th Amendment, and vice versa.
That’s consistent with how most courts and constitutional scholars interpreted the 14th Amendment in the decades after its ratification. In the famous Slaughterhouse cases of 1872, the U.S. Supreme Court stated that the jurisdictional requirement was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Notably, even modern advocates of universal birthright citizenship agree that at least some individuals were (and still are) excluded from citizenship because they owed only a qualified allegiance, despite having been born “in the United States.”
For example, few people seriously argue that the citizenship clause applies to Native Americans who are born subject to the jurisdiction of their tribal governments. Though born “in the United States,” their allegiance is divided between the United States and their tribal governments, which were (and still are) considered “quasi-foreign nations.”
In fact, the Supreme Court confirmed that in 1884 in Elk v. Wilkins when it denied citizenship to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.
The U.S. citizenship of American Indians comes not through the 14th Amendment, but through the Indian Citizenship Act of 1924. There would have been no need for this law if the 14th Amendment extended citizenship on all individuals born in America, no matter what the circumstances of their birth, and no matter the legal status of their parents.
The same legislative history that so clearly excludes tribal Indians from birthright citizenship also makes clear that the citizenship clause does not cover the U.S.-born children of other individuals who owe only a minimal, qualified, or temporary allegiance to the United States.
It is the difference between temporary, territorial jurisdiction—which subject all foreigners who enter the U.S. as a tourist to the jurisdiction of our laws—and complete political jurisdiction, which requires allegiance to the U.S. government as well. A tourist can be prosecuted for violating our criminal laws, but cannot be called for jury duty or drafted into the military because that tourist is not subject to the complete jurisdiction of the U.S.
If that tourist has a baby while here, her child is a citizen of her home country and owes no political allegiance to the U.S. Thus, the child is not a U.S. citizen.
While the concept of “illegal immigration” didn’t exist at the time of the 14th Amendment’s passage, the same principles would disqualify individuals who are illegally present in the United States.
Is Birthright Citizenship Really ‘Law of the Land?’
Even when faced with the reality of the 14th Amendment’s original meaning, advocates of universal birthright citizenship today often claim it doesn’t matter because the Supreme Court has allegedly declared their interpretation “the law of the land.”
It’s true that, in an 1898 case, United States v. Wong Kim Ark, the Supreme Court held that the U.S.-born child of Chinese immigrants who were lawfully present and permanently domiciled in the United States was a U.S. citizen under the 14th Amendment.
But the holding in Wong Kim Ark only deviates from the original meaning of the 14th Amendment if one chooses to read it under the assumption that the Supreme Court intended to upend decades of precedent and supersede Congress’ clear intent. That assumption is unnecessary, illogical, and dangerous.
At its core, Wong Kim Ark was about the government’s attempt to circumvent the 14th Amendment and keep Chinese immigrants and their children from ever becoming citizens, by any means, just because they were Chinese. At the time, federal law barred Chinese immigrants from becoming naturalized citizens, and they were, according to treaty obligations with China, perpetual Chinese subjects.
Much like the freed slaves that Congress had in mind when drafting the 14th Amendment, Chinese immigrants were—entirely because of their race—prohibited from subjecting themselves to the complete jurisdiction of the United States. Despite owing no tie of allegiance to any other nation, Wong Kim Ark had been relegated to permanent alienage in the country where he’d been born and raised and rightfully considered his own.
This type of race-based discrimination in citizenship was precisely what the 14th Amendment was intended to prohibit, and the Supreme Court rightly recognized the system for the unconstitutional travesty it truly was. While the opinion can also be read as affirmatively adopting jus soli and universal birthright citizenship as the “law of the land,” it can just as easily be read as adopting only a flexible, “Americanized” jus soli limited to the factors of lawful presence and permanent domicile.
That second interpretation renders the holding consistent with the original meaning of the 14th Amendment. It is also precisely what many legal commentators at the time thought the Supreme Court meant, too.
In plain language, the holding of that case only applies to the children of permanent, resident aliens, and cannot be used to justify any claim that it extends citizenship to the children of aliens illegally present or temporarily here legally.
Lessons for Today
In short, while the U.S. government today may continue treating all U.S.-born children as citizens, it’s not because the Constitution requires it or because the Supreme Court has mandated such a policy. Neither illegal nor nonimmigrant aliens meet the requirements of lawful permanent residency envisioned by Congress and relied upon by the Supreme Court in the decision.
They, therefore, are not subject to the jurisdiction of the United States under the original meaning of that condition in the citizenship clause. And, importantly, their failure to meet the conditions of lawful permanent residency aren’t the result of other race-based legal barriers.
As I wrote during Trump’s first term, embracing the original meaning of the citizenship clause isn’t about racial prejudice or a disdain for immigrants. Rather, such a move recognizes that American citizenship is reserved for all who, regardless of their race or former allegiances, have taken meaningful legal steps toward solidifying permanent bonds with the American people, have taken up the duties and responsibilities inherent to those bonds, and do not owe political allegiance to any other nation.
A return to national citizenship policy that more accurately reflects the original understanding of the citizenship clause is something to be celebrated by citizens and would-be citizens alike.
