After 150 Years, Courts Should Clearly and Finally Define The Question Of Birthright Citizenship

As we have discussed over the last couple days, President Donald Trump’s pledge to end birthright citizenship by an executive order has caused a firestorm.  Where President Donald Trump is wrong is to claim the ability to end birthright citizenship for undocumented individuals through an executive order.  The column below in USA Today explains that Trump would lose under two out of three interpretations of the 14th Amendment.  Even if he prevailed on the one possible interpretation, I remain opposed (as I was under President Barack Obama) to unilaterally ordered such major changes through executive orders.   Putting aside the means, I have been surprised by the many statements that the meaning of the 14th Amendment as it relates to illegal or undocumented is absolutely unclear and unassailable.  In fact, while birthright citizenship is unassailable, the scope of the amendment has long been questioned including both Democratic and Republican members long proposing legislative limits (including former Sen. Harry Reid).  An argument can be made for a more limited meaning, even though the plain meaning of the Amendment (and the interpretation that I would tend to favor) would militate toward the broader meaning.  Regardless, a clear and final ruling on the 14th Amendment should be welcomed — confirming whether this is a matter for legislative reform or constitutional amendment.  Trump should drop the executive order approach so the focus of any judicial review is on the meaning of the 14th amendment and not the means used by the President.

Here is the column:

President Donald Trump’s announced intention to end “birthright citizenship” by executive order has pushed an already heated debate over immigration into a virtual inferno of election year politicking. At base, however, it is one of the longest standing debates in our Constitution: whether the 14th Amendment affords citizenship to anyone born on our soil regardless of their status. While neither side seems willing to admit it, there are good-faith arguments on both sides, and frankly this order could force the federal court to come to a final and clear resolution of the question.

The debate comes down to six poorly chosen words: “and subject to the jurisdictionthereof.” Those words come in the middle of an otherwise clear statement that “all persons born or naturalized in the United States … are citizens of the United States.” The words have long been argued by some to mean that the amendment applies only to citizens and legal residents who are subject fully to the jurisdiction of the United States.

Three ways to interpret those six words

The primary purpose of the amendment was to ensure that freed slaves after the Civil War would have full rights of citizenship in every state. When the amendment was drafted, various senators indicated that they intended the amendment to have the more narrow meaning.

One of the key drafters, Sen. Lyman Trumbull stated during the debates that the language confined citizenship to those “born in the United States who owe allegiance to the United States,” and excluded foreign citizens. Later, in a federal statute, Rep. John Bingham said the law embodied “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen.”

Others have argued that the clause refers to people simply being subject to federal laws, not a matter of allegiance to that authority. “Jurisdiction” refers to falling under the authority of a legal system.

There is a middle position that is also possible: The reference to “jurisdiction” left the decision of the meaning of citizenship up to Congress to decide as a policy question.

The Supreme Court offered only limited light on the subject with its decision inUnited States v. Wong Kim Ark in 1898 when it ruled 6–2 that “the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory … including all children here born of resident aliens.”

That decision is often cited as establishing birthright citizens for everyone, but those parents were legal residents. Most advocates of the narrower meaning of the 14th Amendment agree that both citizens and legal residents are deemed “subject to the jurisdiction of the United States.”

The United States is actually in the minority of nations that recognize birthright citizenship. The rule of jus soli (or right of the soil) is only recognized in an unrestricted sense in roughly 30 countries.

Our European allies and most countries in the world follow the rule of jus sanguinis (or right of blood) and refuse to recognize citizenship solely because someone was on their territory at birth.

The politics on this issue have ebbed and flowed in America. An estimated 7.5 percent of all births here (about 300,000 births a year) are to illegal or undocumented immigrants. Democrats joined Republicans in the past in seeking to bar unrestricted birthright citizenship. Indeed, in 1993, former Sen. Harry Reid, D-Nev., introduced legislation to limit birthright citizenship to the children of U.S. citizens and legal residents.

Two of three interpretations leave Trump out

President Trump clearly believes that this is good politics, but the question is whether there is good law to go with it. Based on the text and history of the 14th Amendment, the narrower interpretation has a solid but not definitive case.

The use of an executive order rather than legislation or a constitutional amendment adds another controversial element to the combustive mix. Regardless of the interpretation, the best approach would be to address this through congressional action. This is a matter of tremendous importance for our country that should be addressed by all of the representatives of the people, not a single unilateral act of a president.

Nonetheless, the benefit of the executive order is that it could force the courts to resolve this question with clarity and finality. Under two of the three interpretations, Trump cannot do what he described. If the Constitution adopts the unrestricted approach or leaves the matter to Congress, a unilateral action would not suffice to bar birthright citizenship. It is only if the Supreme Court adopts the narrow interpretation that such an order might succeed.

In other words, the question of means will ultimately depend on the meaning of the amendment. All roads lead to the same six words.

The meaning of those words might be answered by the newly reconstructed court with two Trump appointees — Neil Gorsuch and Brett Kavanaugh. The textual and historical arguments supporting the narrower interpretation are likely to appeal to those justices and could leave Chief Justice John Roberts as the swing vote.

In the end, a final decision on the meaning of these six words should be welcomed. The 14th Amendment was a defining moment for our country when we made the critical turn away from the scourge of slavery. It defines meaning of a citizen — the entry point for full rights and responsibilities under our Constitution.

This year is the 150th anniversary of the ratification of the 14th Amendment. That is 150 years too long to resolve the question of what constitutes a citizen of the United States.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley

179 thoughts on “After 150 Years, Courts Should Clearly and Finally Define The Question Of Birthright Citizenship”

  1. If the 14th Amendment shed new light on how babies obtain their US Citizenship, the question arises: How did Americans born before 1868 obtain their US Citizenship? If the thrust of the 14th Amendment were, as so many now claim, establishing babies’ right to automatic birth citizenship, how did Abe Lincoln become a US Citizen?

    In light of the obvious answer “Lincoln became a citizen by jus solis”, then this demonstrates that the 14th Amendment was NOT intending to to speak to the citizenship status of babies.
    You simply don’t go to the trouble of writing and ratifying an Amendment that has zero impact on the status quo. Both jus solis and jus sanguinis had been firmly established in US Law by 1790, and by English common law centuries before. There was no controversy about how American babies got their citizenship in 1868.

    The 14th Amendment was passed to enshrine the citizenship rights of the former slaves with Constitutional force. Previous attempts to enact these rights in statute were made in 1866, but the southern states worked to nullify The Civil Rights Act of 1866 by arguing the precedent of the Dred Scott SCOTUS decision in State Court challenges.

    The only possible connection of the 1866 Act to foreigners and their newborns was they way it embraced the former slaves while excluding the global population of foreign nationals from automatic US Citizenship by virtue of a baby born during a US visit. That exclusion was much more explicit in the 1866 law than the wording adopted for the 14th. Nationality (allegiance to a foreign ruler or potentate) was used as the means of setting aside the global population from the freed US slaves.

    Does anyone think the ratifiers of the 14th Amendment were approving automatic birth citizenship for a global population of parents? If so, why wasn’t it written in history books that this was the intended impact of the 14th? It wasn’t.

    And this final question is meant to be taken seriously: Given the import of ratification as the means of assuring broad consensus (the consent of the governed), how is it possible to radically defy the intentions of the ratifiers by isolating the verbiage of their Amendment from its historical context, and then reinterpreting them to mean something completely different?
    Isn’t that defying the challenge to build wide consensus before changing the practical impact of Constitutional Law? Is reinterpretation of verbiage a connivance to circumvent the consent of the governed?

    1. pbinca – FOB Irishman were rounded up by the Democratic Party to vote several times in the same election. They were paid for it and then given jobs as well. Patronage was king. All of this was prior to, during and after the War of Northern Aggression.

      The Irish caused a major riot in NYC be of the draft since they felt they had no part in the war and black were competition for the same jobs.

  2. The left in a nutshell.

    I have the right without explanation to all of your rights without exception.

    Thjs was their position on Money is Free Speech but it applies not only elsewhere but everywhere.

    Their sole argument other than I claim the right by virtue of wealth, or by power if alowed any or by ideology or by selfishness is to take away all your rights is not only a First Amendment violation but a violation of the 5th, 9th, 10th, 14th, 15th, and 19th Amendments as they exist today with that one explanation.

    I have the right without explanation to all of your rights without exception.

  3. Video of people that actually investigated the caravan. 98% men who have left their woman and children at home. Who is protecting the woman and children? The discuss the origin and supporters of the caravan.

    https://www.judicialwatch.org/video-update/inside-judicial-watch-what-the-mainstream-media-wont-tell-you-about-the-migrant-caravan-crisis/?utm_source=deployer&utm_medium=email&utm_campaign=action+alert&utm_term=members&utm_content=20181103175208

  4. Our country was built with and by anchor babies and illegal immigrants. Dual citizenship went by the wayside with the Declaration of Independence. To where do you owe allegiance? The King? or the new country. When considering the question of citizenship, perhaps there should be a tightening up there. We have many people with dual citizenship, many of them in Congress.

    1. Darren, I have been trying to post on different threads and under more than one of my names, The anonymous icon permitted posting.

        1. Allan,

          I found four of your comments within the spam filter. I do not know why WordPress flagged these but I restored each.

  5. Darren, I tried this twice under my regular name. I downloaded a video from Prager’s site. On two different threads that download didn’t appear. This time I am trying a download from Youtube but also under an alternate alias.

    Is this simply WordPress acting up or do they have a block on Prager? Prager videos and videos of others on the right have been blocked elsewhere even where the content is mild showing no violence, sex or anything of that nature. The web sites doing the blocking frequently utilize what the Southern Poverty Law Center designates as a hate group even though the SPLC has changed from one protecting rights to a center that bases hatred on a political basis. Thus a Farrakhan video calling Jews termites can be permitted on many sites but a mild video from right wing groups that has no hate or anything can have their videos blocked.

  6. I support President Trump in most of what he has done. He cannot change the constitution all by his lonesome. To amend the constitution is quit an ordeal. I support what the President wants to do, but if we are a nation of laws, Donald cannot do this with the stroke of a pen.

      1. The Drifter – Justice Brennan did it with a few words in a footnote in a case, which should not be followed, but has been. Clearly the President can restore the Constitution with the stroke of his pen if Brennan can destroy it with the stoke of his.

    1. OK, but is it not equally wrong to amend the meaning of an Amendment as Ratified to suit other purposes NOT APPROVED by the Ratifiers? Yes, the Founders made it hard to Amend, but I’m pretty sure their ethos in putting forth such rigor was mustering the “consent of the governed” behind a change in the country’s legal blueprint. What makes you think it’s OK to radically expand the meaning of the 14th beyond what its Ratifiers took it to mean? They knew that it wasn’t meant to give automatic citizenship to a global population. It was meant to cement the civil rights and citizenship status of the freed slaves. To the Rarifiers, the 14th shed no new light on how babies obtained US citizenship — that law was well established since 1791. Otherwise, explain how Abe Lincoln became a US Citizen.

      This is where the “living Consatitution” crowd has it so wrong. You cannot amend the Constitution’s impact by reinterpretation of verbiage, because to do so undermines the principle that changes require Ratification. Amendment via reinterpretation is subversive — it is a trick employed by legal elites to circumvent building popular consensus. It runs counter to government by the people. Why so few people appreciate this shows how far we’ve fallen in teaching civics, or how thoroughly the media elites have brainwashed the average person into compliance with elite, minorty rule.

    1. An executive order doesn’t change the Constitution. It’s an order to be followed if within the scope of the Presidency. Aside from court challenges an exectuive order is only permanent until another President reverses the order.

    2. So the government doesn’t know the illegal alien is here but he is under the U.S. government’s jurisdiction.

      So illegal alien invaders give up their citizenship in their countries of origin by committing the crime of trespass and illegal entry into a different country? So the country of origin relinquishes jurisdiction over its citizen when its citizen exits illegally, right?

      So the 14th Amendment is wholly unnecessary because the illegal alien is under the jurisdiction as soon as he crossed the border; any border.

      In that case, it was pointless and entirely without effect for the 14th to have been written to include “…and subject to the jurisdiction thereof…” because we all know and you clarified, the illegal alien is automatically and presumptively under the jurisdiction thereof.

      Oh, I get it. They are “dual” citizens. That’s like saying a king would accept dual allegiance of his subjects.

      That dudn’t make any sense.
      _______________________

      14th Amendment

      “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.”

      Translation:

      All persons born or naturalized in the United States and subject to the jurisdiction of the aforementioned United States are citizens of the United States and of the State wherein they reside.

      Take your TDS to the doctor. Get treatment.

  7. President Trump has the same rationale and justification for a declaration of insurrection and rebellion as Abraham Lincoln. Considering a Trojan Horse of up to 30 million foreign invaders as extant illegal aliens, sanctuary cities which treasonously aid and abet criminal foreign intruders and looming and burgeoning invasion forces on the border, President Trump should declare that condition of insurrection or rebellion and issue proclamations and executive orders as he deems necessary.

    1. All of Abraham Lincoln’s and his successors’ acts, including the 14th and two other “Reconstruction Amendments,” and all other previous unconstitutional acts such as taxation for “individual welfare” by Congress (i.e. the entire redistributionist welfare state), must be rescinded and abrogated by President Trump with the support and concurrence of the newly reinforced, conservative Supreme Court.

      The Constitution and Bill of Rights previously provided methods of resolution of all related issues.

      Freedom, free enterprise and free markets, without interference or intercession by government, provide the correct solution in every case.

      Intercession by Lincoln caused human deaths and economic destruction when advocacy through free speech, boycotts, divestiture, vacating slave deeds as George Washington did, etc. would have eliminated slavery.

      Tariff and other intercession by Roosevelt caused the “Great Depression.”

      One-child policy intercession by China will have caused its own demise by demographics – 90 million cheese men have no hope of marrying and the Chinese ship of state is sinking from the weight of its elderly.

      The American thesis is freedom and self-reliance with severely limited and infinitesimally small government.

  8. The government does not know that an illegal alien is in its country.

    To the government, an illegal alien does not exist.

    A government cannot have jurisdiction over something that does not exist.

    An illegal alien is not under the jurisdiction of the country he is in.

    An illegal alien is under the jurisdiction of the country he came from.

    Governments do not have jurisdiction over citizens of foreign countries.

    A baby inside an illegal alien mother has the same status as the illegal alien mother.

  9. Off topic but pertinent: ““Job growth blew past expectations in October and year-over-year wage gains jumped past 3 percent for the first time since the Great Recession,” Jeff Cox reports for CNBC.
    “Nonfarm payrolls powered up by 250,000 for the month, well ahead of Refinitiv estimates of 190,000. The unemployment rate stayed at 3.7 percent, the lowest since December 1969… But the bigger story may be wage growth, which has been the missing piece of the economic recovery.””

  10. If you are not subject to being drafted then you are not subject to the jurisdiction of the country. This isn’t complicated.

    Let them Dems stand up and fight for the illegal aliens and visitors who want their anchor babies. It’s a losing issue. Bust out the popcorn.

  11. “The primary purpose of the amendment was to ensure that freed slaves after the Civil War would have full rights of citizenship in every state.” I agree. The purpose was to benefit the freed slaves, not to create an off book immigration scheme that circumvents our legal immigration system.

    Our current system entices heavily pregnant women to make a very dangerous journey to the US. If they get caught, they can be turned back. But if they make it across the border, it is suddenly inhumane to turn them back. If they survive the rape gauntlet and inhospitable desert, 9 months pregnant, and give birth to a child who survives, they have won the immigration lottery. They now have an anchor baby, who can later apply to grant them chain migration legal status.

    This system is sick. It is responsible for the deaths of many pregnant women and their children. The rape of pregnant women. Women laboring to give birth in the sage scrub with no help. What kind of country does this?

    Donald Trump does not</b? have the authority to make immigration law through executive order. Constitutional Law should be determined through the court. That was the appropriate venue for this matter to finally be resolved.

    It may come as a shock to Democrats, but interpreting birthright citizenship to exclude the offspring of illegal aliens has long been a position of the Democratic Party.

    https://www.youtube.com/watch?v=l5z3_h9xXSU

    I agree that there are compelling arguments on both sides of this issue, but that it should play out in court.

    1. If an illegal immigrant mother leaves her husband and bears their child on US soil, who has custody jurisdiction? Her home country, which rules both parents, or the US?

      1. HA! That is actually the subject of treaties. Not an easy answer. I don’t know i Just know that there are treaties and judges are very careful about these determinations

    2. Karen S – since the only compelling argument for this is Brennan’s dicta then Trump’s EO would only restore the natural order.

    3. Citizens have the rights of citizens.

      There is no duplicity in the Constitution.

      Freed slaves could not be citizens.

      Slaves were “property” then, after emancipation, “illegal aliens” requiring deportation as the Naturalization Act of 1802 required citizens to be “…free white person(s).”

      Lincoln’s administration and successors were criminals who violated the federal law regarding immigration.

      This is a massive “cold case” in need of resolution which involves the descendants of freed slaves who also must have been

      deported.

      All of Abraham Lincoln’s and his successors’ acts, including the 14th and two other “Reconstruction Amendments,” and all other

      previous unconstitutional acts such as taxation for “individual welfare” by Congress (i.e. the entire redistributionist welfare state),

      must be rescinded and abrogated by President Trump with the support and concurrence of the newly reinforced, conservative

      Supreme Court.

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