Birthright citizenship, a concept deeply rooted in American law and history, has long been defined by the Fourteenth Amendment, which was ratified in 1868 in the aftermath of the Civil War. At its core, the amendment was designed to grant citizenship to formerly enslaved individuals and their descendants, ensuring their full legal status within the United States. However, the precise meaning of the phrase “and subject to the jurisdiction thereof” has been a subject of legal and political debate for over a century.
Origins of the Fourteenth Amendment
Section 1 of the Fourteenth Amendment 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.” The primary intent of this provision was to override the Supreme Court’s infamous 1857 decision in Dred Scott v. Sandford, which had denied citizenship to former slaves. By explicitly granting birthright citizenship, the amendment sought to solidify equal protection under the law for all individuals born on American soil.
Interpreting ‘Subject to the Jurisdiction Thereof’
While the amendment broadly affirms citizenship for those born in the U.S., the phrase “subject to the jurisdiction thereof” has been a point of contention. Many legal scholars and government officials, including past and present White House administrations, interpret this clause as excluding certain groups from automatic citizenship at birth, e.g., children born to foreign nationals, who are subject to the jurisdiction of their home nation.
The original debates in Congress surrounding the amendment indicate that its framers intended to exclude individuals who, while born in the United States, remained subject to foreign powers. Senator Lyman Trumbull, a key figure in drafting the amendment, explicitly stated that this provision meant “not owing allegiance to anybody else.” This interpretation suggests that individuals who are born in the U.S. to foreign diplomats or enemy combatants would not be considered American citizens.
Historical Applications and Supreme Court Rulings
The Supreme Court addressed birthright citizenship in the 1898 case United States v. Wong Kim Ark. The case involved Wong Kim Ark, a child born in San Francisco to Chinese parents who were not eligible to become citizens, although they lived in the U.S. legally, but were not subject to the jurisdiction of China. The ruling affirmed that a child born in the U.S. to legally present non-citizen parents was, in fact, a U.S. citizen. However, the ruling did not directly address the status of children born to undocumented immigrants or those with temporary or no legal status. As a result, foreign nationals who enter the country temporarily or unlawfully, and “citizenship tourists” have become a common occurrence. Citizenship tourists are foreign nationals who plan their vacations to America at the time they are expected to give birth, and deliver the baby in an American hospital, resulting in an “anchor baby,” wherein the parents can apply for citizenship due to having an American citizen child. This practice has been horrifically abused by foreign nationals seeking and ‘end run’ around the immigration laws of the U.S.
In recent years, various legal scholars and policymakers have argued that children born to undocumented immigrants should not automatically receive citizenship. They claim that such individuals, being under the jurisdiction of their parents’ home countries, are not fully subject to U.S. law as intended by the amendment’s drafters. On the other side, proponents of a broad interpretation of birthright citizenship argue that the phrase “subject to the jurisdiction thereof” simply means being subject to U.S. laws, excluding only children of diplomats and hostile foreign entities.
Political and Policy Implications
The debate over birthright citizenship has remained at the forefront of American politics, with various administrations exploring potential executive or legislative action to clarify or modify its application. Liberal administrations have sought to expand the policy of birthright citizenship, seeking to flood the U.S. with what they perceive as liberal voters. Conservative administrations have sought to limit the policy to avoid the economic hardships created by tens of millions entering the country and consuming all available welfare resources. Some policymakers have proposed that Congress pass legislation explicitly redefining the scope of the Fourteenth Amendment’s citizenship clause. Others argue that any substantial change would require a constitutional amendment, a process that is both legally complex and politically difficult.
President Donald Trump has issued an executive order ending automatic birthright citizenship for temporary or illegal aliens as well as citizenship tourists. The administration knew there would be substantial legal attacks on the EO from liberals, and is testing the interpretation of “and subject to the jurisdiction thereof” in the federal courts, to obtain a final ruling on the matter from the U.S. Supreme Court.
As discussions over immigration and national identity continue, the interpretation of the Fourteenth Amendment remains a key issue in legal and policy debates. Whether courts will further define or alter the application of birthright citizenship remains to be seen, but the historical and legal questions surrounding this cornerstone of American identity are unlikely to be resolved anytime soon.
By James Thompson. James Thompson is an author and ghostwriter, and a political analyst. He served as Articles Editor on B.Y.U. Law Review.
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