Birthright Citizenship: No Country for New Babies?

By: Kimberly Fasking

Member, American Journal of Trial Advocacy

Jus Soli

Jus soli is a Latin phrase which was largely unfamiliar outside Immigration Law circles until the recently, when President Trump indicated he was considering ending this longstanding aspect of the country’s citizenship policy via Executive Order.[1] The phrase, meaning “law of the soil,” is used to describe what is commonly referred to as “birthright citizenship,” that is, citizenship determined by where a child is born.[2]

From its early beginnings as a fledgling country, the United States utilized jus soli, which was the same approach to citizenship taken by our contemporaries in England and Europe.[3] Although our inclusive policy has been marred at various points by fear and prejudice, we have, for the most part, embraced the notion that all people born here are citizens of this country.[4] In 1844, the court in Lynch v. Clarke[5] held that the Constitution “pre-supposed the existence of the common law [from England] and was founded upon its principles,” which included citizenship by way of jus soli, and that it is “the law of the United States, that children born here, are citizens, without any regard to the political condition or allegiance of their parents.”[6] So, regardless of the immigration status of the parents, nearly every child born on U.S. soil was, and still is, considered a U.S. citizen.

Fourteenth Amendment

One group that was distinctly excluded from the citizenship bestowed upon those born in the United States was that of slaves and their descendants.[7] With the conflict among the states of the legality of slavery and their emancipation, questions arose as to how these people were to be treated as members of our society.[8] The Dred Scott[9] decision, in 1857, highlighted a glaring problem with how we viewed citizenship in this country, with the Supreme Court holding that “[a] free [man] of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.”[10] The Court reasoned that it had no authority to declare Scott a citizen, as the laws were clear as to who could legally be declared a citizen and who could not.[11]  It held that only the legislature possessed the power to change the laws as the Court understood them.[12]

Shortly after Dred Scott, the Fourteenth Amendment was ratified, aimed squarely at rectifying this citizenship gap and declaring, “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.”[13] It granted the descendants of slaves equal right to citizenship, the same as all others born in the United States, thereby superseding the repugnant Dred Scott decision.[14]

Turnabout

In 1898, the case of Benny v. O’Brien[15] came before the Supreme Court of New Jersey. A child born of Scotch parents in the United States was held to be a citizen by virtue of the Fourteenth Amendment. The court reasoned that, although the amendment’s initial intent was to confer citizenship on descendants of slaves, any children of parents who were considered non-citizens, regardless of race, ought to be treated equally under the law.[16] They held that descendants of slaves “were no more subject to the jurisdiction of the United States by reason of their birth here than were the white children born in this country of parents who were not citizens.”[17] This decision further affirmed the notion that all people born on U.S. soil are citizens based on that factor alone, jus soli.

“Subject to the jurisdiction thereof”

Recently, the Fourteenth Amendment has come under scrutiny with a call to reexamine our policy of birthright citizenship.[18] In particular, the question has arisen of whether the phrase “subject to the jurisdiction thereof” in the first sentence is meant to exclude those who are not lawful residents.[19] However, the Supreme Court has heard a number of cases on this issue, and has consistently held that our Constitution confers birthright citizenship on all people born here.[20]

Against the ugly backdrop of one of a number of racially-discriminatory immigration policies in our history, the Court held in United States v. Wong Kim Ark[21] that, consistent with the laws of so many other contemporary countries, particularly those in Europe[22], Wong Kim Ark was, by his birth, not by the status of his parents, a citizen of the United States.[23] The Wong Kim Ark court reasoned that the wording “subject to the jurisdiction thereof” would appear to “exclude, by the fewest and fittest words . . . the two classes of cases, — children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state.”[24] Furthermore, they stated that the phrase “was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth.”[25]

Noting conventional verbiage of the time, the Wong Kim Ark court reasoned that

“it is ‘impossible to construe the words ‘subject to the jurisdiction thereof,’ in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words ‘within its jurisdiction,’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the states of the Union are not ‘subject to the jurisdiction of the United States.’”[26]

In other words, anyone who is within the United States is subject to its jurisdiction, and anyone who is born to someone who is subject to its jurisdiction is a citizen.[27] The Court in Plyler v. Doe[28] affirmed Wong Kim Ark, holding that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”[29]

These cases illustrate that our system of jus soli, or birthright citizenship, applies to all persons born on U.S. soil, to anyone who is “subject to the jurisdiction of the United States.”[30] This includes everyone on U.S. soil, whether here legally or contrary to law, unless they are specifically excluded, such as foreign diplomats and enemy combatants. Birthright citizenship is woven into the fabric of our Constitution, as it has been since the early beginnings of our nation.

Constitutional Amendments

If the movement to end birthright citizenship gains steam, the avenue to make such a drastic change will likely not be through the Judiciary, but through the Legislature. The Supreme Court has, since Marbury v. Madison[31], had the power of judicial review—to determine whether a law violated the Constitution[32]—but it does not have the power to legislate or amend the Constitution according to the shifting tides of public opinion or whim.[33] What the Court can do, however, is reevaluate their understanding of Constitutional interpretation by recognizing the changing dynamics of a modern world and applying the textualist or originalist approach with an eye toward intent rather than semantics.[34] The Court in Dred Scott failed to do this, so the Legislature took action with the Fourteenth Amendment, ensuring an equal right to citizenship for all people born in the United States, regardless of parentage. This amendment has been interpreted and affirmed in the courts time and again, and reexamining the semantics of the phraseology does little to clarify the issue or advance an alternative theory.[35] Because the courts have decided our citizenship policy embraces jus soli, until that policy is changed by another constitutional amendment, that is where it stands. As to the question of whether such a change could be made via an Executive Order, we needn’t linger on that issue, as it is common knowledge that such an action cannot amend our Constitution, despite the president’s claim to the contrary.[36]


[1] Amanda Erickson, Trump says no other country has birthright citizenship. He’s wrong., Washington Post, October 30, 2018, https://www.washingtonpost.com/world/2018/10/30/trump-says-no-other-country-has-birthright-citizenship-hes-wrong/?utm_term=.7664724cb544.

[2] Id.

[3] Lynch v. Clarke, 3 N.Y.Leg.Obs. 236 (N.Y. Ch. 1844).

[4] See, e.g., United States v. Wong Kim Ark, 169 U.S. 649 (1898); Perkins v. Elg, 307 U.S. 325 (1939); Morrison v. California, 291 U.S. 82 (1934).

[5] 3 N.Y.Leg.Obs. 236, (N.Y. Ch. 1844).

[6] Lynch, 3 N.Y.Leg.Obs. at 236.

[7] Dred Scott v. Sandford, 60 U.S. 393, 393 (1857).

[8] Dred Scott, 60 U.S. at 393.

[9] Id.

[10] Id.

[11] Id. at 394 (“The change in public opinion and feeling in relation to the African race, which has taken place since the adoption of the Constitution, cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.”).

[12] Id.

[13] U.S.C. Const. Amend. XIV (1868).

[14] Ben Mathis-Lilley, Huckabee Claims Black People Aren’t Technically Citizens During Critique of Unjust Laws, Slate, Sept. 11, 2015, https://slate.com/news-and-politics/2015/09/mike-huckabee-dred-scott-black-people-arent-fully-human-under-law-he-erroneously-claims.html.

[15] 58 N.J.L. 36 (N.J. 1895).

[16] Benny v. O’Brien, 58 N.J.L. 36, 40 (N.J. 1895) (“The same rule must be applied to both races; and, unless the general rule that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the fourteenth amendment has failed to accomplish its purpose . . . The fourteenth amendment, by the language ‘all persons born in the United States and subject to the jurisdiction thereof,’ was intended to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race.”).

[17] Benny, 58 N.J.L. at 40 (emphasis added).

[18] Aziz Huq, Trump’s birthright citizenship proposal, explained by a law professor, Vox, https://www.vox.com/policy-and-politics/2018/10/31/18047896/trump-supreme-court-birthright-citizenship

[19] Id.

[20] See, e.g. Wong Kim Ark, 169 U.S. 649 (1898); Plyler v. Doe, 457 U.S. 202 (1982); Benny v. O’Brien, 58 N.J.L. 36 (N.J. 1895).

[21] 169 U.S. 649 (1898).

[22] Wong Kim Ark, 169 U.S. at 666.

[23] Id. at 705.

[24] Id. at 676.

[25] Id. at 687-88.

[26] Id. at 687.

[27] Id. at 687-88.

[28] 457 U.S. 202 (1982).

[29] Plyler, 457 U.S. at 254, n.10.

[30] U.S.C. Const. Amend. XIV (1868).

[31] 5 U.S. 137 (1803).

[32] Brett M. Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907, 1917 (2014) (“It was the duty of the courts to say what the law is.”).

[33] Id. at 1926 (“And these cases exemplify that textualism—constitutional textualism and statutory textualism—is politically and policy neutral when applied across the board.”).

[34] See, e.g., Brown v. Board of Ed., 347 U.S. 483 (1954); Loving v. Virginia, 388 U.S. 1 (1967).

[35] See, e.g., Wong Kim Ark, 169 U.S. 649 (1898); Plyler v. Doe, 457 U.S. 202 (1982); Benny v. O’Brien, 58 N.J.L. 36 (N.J. 1895).

[36] Joel Rose, FACT CHECK: 14th Amendment on Citizenship Cannot Be Overridden By Executive Order, NPR, Oct. 30, 2018 (quoting Paul Ryan, “You cannot end birthright citizenship with an executive order. . . You know, as a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”); Wong Kim Ark, 169 U.S. at 701 (citing Chirac v. Chirac, 15 U.S. 259, (1817)) (“The power, granted to congress by the constitution, ‘to establish an uniform rule of naturalization,’ was long ago adjudged by this court to be vested exclusively in congress.”); Brett M. Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907, 1913-14 (describing the Executive, Legislative and Judicial branch powers and stating, of the Constitution, “There is an amendment process, articulated in Article V. And that amendment process is meant to be used . . . [T]he text controls.”).

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