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The following is an opinion contribution and reflects the author’s views alone.
It is no controversial assertion that the Trump Administration’s words and actions have raised serious questions about constitutional provisions and principles long believed to be settled. The Administration has faced perhaps the greatest resistance in its approach to birthright, or jus soli, citizenship. More specifically, President Trump has questioned on several occasions whether the children of illegal aliens, though born on American soil, are entitled to constitutional American citizenship under the Fourteenth Amendment.
In many ways, this debate over birthright citizenship is a uniquely important one in our pantheon of constitutional debates. Illegal immigration is itself a pressing public policy problem that demands imminent action. One of the single most significant incentives of illegal immigrants to enter the United States is the prospect of their future children becoming American citizens. Indeed, this idea of “anchor babies” — children born to foreign citizens who can later in turn sponsor citizenship for their parents — has become so lucrative that it has spawned elaborate industries of birth-tourism in developing countries. Illegal immigration also impacts the millions of people who wait — often for decades upon decades — to legally immigrate to the United States and represents an abject failure of public policy. The first step to rectifying the policy failure of illegal immigration is to take aim at, and collapse, the misaligned webs of incentive and profit that have paved its path to popularity. When we are often told that our federal and state governments have been handicapped in posterity by the Constitution from addressing such an important concern as the systematic abuse of birthright citizenship, we are called upon by our good sense to investigate whether the relevant constitutional provision actually means what it is purported to say.
The Fourteenth Amendment has long been read to confer constitutional citizenship on the vast majority of people born on American soil, regardless of parental immigration status (children of diplomats being a notable exception to this rule). However, to borrow what the eminently quotable Justice Scalia once said in the context of the Americans with Disabilities Act of 1990, the Fourteenth Amendment “mandates no such ridiculous thing.”
The debate on birthright citizenship is a debate on the meaning of Section 1 of the Fourteenth Amendment, which reads: “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.”
This provision has three distinct substantive parts: birth, naturalization, and jurisdiction. Birth is an unambiguous term that relies exclusively on the occurrence of a verifiable physical phenomenon and is a concept that has remained unchanged since the Fourteenth Amendment’s ratification. Consequently, every human born on American soil is indeed considered a “[person] born…in the United States.” The second part, naturalization, is irrelevant to this debate on birthright citizenship because it concerns a process of citizenship acquisition that takes place after birth. Further removing naturalization from the purview of the present debate is the fact that Article I Section 8 Clause 2 of the Constitution expressly bestows upon Congress the power “[t]o establish an [sic] uniform Rule of Naturalization.” The intellectual battle over birthright citizenship is therefore waged on the final segment of the provision and can be distilled into the form of a single question—what does it mean, constitutionally speaking, to be “subject to the jurisdiction [of the United States]?”
Our first instinct, informed by our modern, semantic understanding of “jurisdiction,” would likely lead us to conclude that the jurisdictional section of the clause merely requires that a person be subject to the legislative, executive, and judicial power of the United States. This, however, proves to be far too simplistic and contextually divorced a reading of the Fourteenth Amendment’s language. The Citizenship Clause of the Fourteenth Amendment in fact closely follows the language and structure of the Civil Rights Act of 1866, which reads, “[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.” While it may be tempting to argue that subjugation to the “jurisdiction [of the United States]” and “[no] foreign power” impose different jurisdictional standards, such a reading stems from our current understanding of the relevant terms and is unsupported by contemporaneous evidence and context. They impose precisely the same standard.
Any proper reading of the Citizenship Clause must take into account its relationship to Native Americans, who, in many ironic respects can be considered period analogues to present-day illegal aliens. It is widely known that Native Americans were not understood by anyone at the time as having any claim to birthright citizenship under the then-proposed amendment. This is because members of Indian tribes were considered subjects and allegiants of their tribes, which were sovereigns in their own right and thus properly considered foreign powers for purposes of determining where one’s allegiance lay.
It is important to note that thinking of jurisdiction in its modern sense does not get us very far here. As constitutional scholar John C. Eastman explains, there is a substantive difference “between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which [also] requires allegiance to the sovereign.” As Eastman posits, this means the concept of jurisdiction contemplated by the Fourteenth Amendment implicitly incorporates the allegiance language of the Civil Rights Act of 1866 and references the complete political jurisdiction mentioned above. That is to say one is not a constitutional citizen of the United States by “birthright” if one does not owe complete, exclusive, and unconditional allegiance to the United States at birth, even if one is nominally under the jurisdiction of its laws and legal institutions. There have been clever arguments against Eastman’s position, but they do not withstand elementary scrutiny. Consider, for instance, the rebuttal that Paul Gowder of the Niskanen Center offers: “How do we recognize those people who owe ‘allegiance,’ whatever that is? Well, we identify them by…their citizenship. Allegiance is a consequence of citizenship; therefore, [Eastman’s] argument clearly begs the question of the citizenship of children of foreign parents born in the U.S. by assuming that they don’t owe allegiance, an assumption that rests on the illicit assumption that they aren’t citizens.”
As clever as it may sound, the entirety of Gowder’s charge rests on a premise that the drafters of the Citizenship Clause themselves soundly and explicitly rejected, as evidenced by their understanding that Native Americans, as subjects of another sovereign, could not be American citizens at birth. They did not consider this to be circular logic but understood “complete jurisdiction” and “allegiance” to be forms of social obligation into which one was born, a child’s allegiance at birth being largely determined by parental citizenship. It was obvious to the drafters of the amendment that children of Native Americans born on U.S. soil were not American citizens because their foreign allegiance had already been passed down to them through their parents. Gowder, on the other hand, believes in a natural presumption of birthright citizenship, the logic of which, when extended, would imply that denying a Native American baby citizenship at birth on the basis of tribal sovereignty would be impermissible. However, this is exactly what the Clause’s drafters unanimously believed would be permissible under the constitutional provision that they were drafting. This, of course, is not to say that Gowder’s understanding of jurisdiction and allegiance is wrong in some objective sense — it is simply not what the provision’s drafters had in mind.
Senator Lyman Trumbull, a central figure in the drafting of the Fourteenth Amendment, made clear that one could only truly be “subject to the jurisdiction [of the United States]” if one owed no allegiance to any other country or sovereign.” This view was judicially reinforced in 1873 in one of the Slaughter-House Cases, in which the Supreme Court held that the jurisdictional qualifier in the Clause was indeed framed so as to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This holding was reaffirmed in 1884 when the Court, in Elk v. Wilkins, denied a citizenship claim to a Native American man on the ground that he “owed immediate allegiance to” his tribe and not to the United States. Indeed, if the Citizenship Clause as written bestowed immediate citizenship on all those born in the United States and subject to such nominal jurisdiction as defenders of birthright citizenship believe to be sufficient, the Indian Citizenship Act of 1924, granting statutory citizenship to Native Americans, would have been redundant and meaningless. It is precisely because the Clause does not grant birthright citizenship as a constitutional matter that a statute to that effect was necessary. This idea of sovereign allegiance, a central feature of the Clause, and its interaction with the most significant “foreign” constituency in the United States at the time of its drafting, necessarily sheds light on our deliberations of the citizenship claims of children of illegal aliens.
All this, of course, was upended at a watershed moment by Wong Kim Ark v. United States, where Justice Horace Gray collapsed this well-perceived distinction between the discrete notions of jurisdiction that Eastman discusses above. Whether the decision in Wong Kim Ark was the Court’s way of consoling Chinese immigrants who suffered injustice in other contexts (cf. the Court’s protection of migrants in Yick Wo v. Hopkins) at the cost of the Constitution or it simply got the case wrong, it was in many ways Wong Kim Ark’s interpretive error that gave rise to the misguided modern theory that the Citizenship Clause requires birthright citizenship.
This fact may even readily defeat the frequent “trump card” of proponents of birthright citizenship, namely, the following excerpt from a speech that Senator Jacob Howard of Michigan, the primary author and sponsor of the Fourteenth Amendment, gave on the floor of the Senate in 1866. “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that 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,” explained Senator Howard. “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.”
Pointing to this quotation, proponents of birthright citizenship claim that Senator Howard did not indicate foreigners, aliens, and ministerial or ambassadorial offspring as discrete exemptions from the Citizenship Clause but was in fact using all three terms interchangeably as synonyms. In so claiming, they could not possibly be making the case more strongly against their own position. Senator Howard’s statement shows precisely how the notion and idea of citizenship has evolved from his time to the present day. Few today would use terms like “foreigner” and “alien” as interchangeable synonyms for children of foreign officials. It is telling that Senator Howard did so, since the context of his time had a limited understanding of “foreignhood.” Indeed, once a person sailed across the ocean to make his or her way to the New World, there was little tying either the migrant or his or her offspring to their prior home. Allegiance could only be pledged to the new land to which they had come. The concern over conflicting sovereignties, all such conflicts being territorially isolated from the American continent, was irrelevant once someone had abandoned an old home far away for the new. One can easily see how it differs with the present day.
Citizenship before the Fourteenth Amendment had, therefore, been tied primarily to the one manner in which immigrants could be distinguished from natives — race. This practice is precisely what the Citizenship Clause sought to rectify, while still leaving in place a jurisdictional qualifier that would exclude none save Native Americans. While territorial migration was a sufficient severer of allegiant and jurisdictional ties in the 19th century, such a paradigm of citizenship does not carry over to the 21st century. Physical separations have never meant less than they do today, and the very existence of passports and widespread use of documents declaring one’s citizenship is proof that citizenship is today far deeper and broader than where one lives or migrates. Each country’s sovereign and jurisdictional reach is multiplied manifold in the modern age, and one’s sovereign allegiance is not dissolved unless through formal renunciation, denaturalization, or processes otherwise resulting in loss of citizenship. It is, therefore, essential to understand Senator Howard’s quotation as one that was framed in the context of a different idea of national citizenship than the one we have today.
The application of the Citizenship Clause to Native Americans and the evolutionary understanding of “jurisdiction” and “allegiance” are critical contexts in which to understand what the Clause actually means and requires. Taken in sum, these contextual guides raise serious questions about the soundness of birthright citizenship as a constitutional mandate and instead counsel its assignment to the congressional domain.
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