Birthright Citizenship is Historic and Fundamental in the United States
Presidential candidate Donald Trump criticized birthright citizenship in the United States and suggested it should be repealed or restricted. Other Republican candidates joined in Trump’s criticism of birthright citizenship, often without showing much understating for the concept, the reason for its existence or its place in American history. This article will address three aspects of birthright citizenship as it pertains to the United States. First, what is birthright citizenship? Second, what is its legal basis? And third, how could it be changed or limited?
WHAT IS BIRTHRIGHT CITIZENSHIP?
In the leading United States Supreme Court decision regarding birthright citizenship, United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Court’s opinion provided a lengthy history of citizenship by place of birth in England, the American colonies and elsewhere, and compared citizenship by birth and its counterpart the rule of descent (Id. at 667).
Citizenship by birth, with two historic exceptions, is determined geographically, and is based on the premise that a person’s parents, whether themselves citizens or aliens, owed their allegiance to the ruler of the jurisdiction where they resided and were under the protection of such ruler; hence their children born within the realm of the ruler were likewise subject to the jurisdiction of the ruler; and by place of birth were deemed “natural born citizens” of that realm. The two exceptions were children of diplomats and children of hostile foreign occupiers of a part of the realm, because neither diplomats nor hostile occupiers considered themselves owing allegiance to the ruler where they physically resided.
Under the rule of descent, a person’s citizenship is determined by the citizenship of the person’s father. The rule of descent is followed in many nations, especially those that follow Roman or European civil law. An argument was made in the Wong Kim Ark case that the rule of descent has replaced the common law rule of citizenship by geographic birth in international law and therefore prevails throughout the world. The Court rejected that argument stating that “[e]ach government [has] a right to decide for itself who should be admitted or deemed citizens.” Wong Kim Ark, 169 U.S. at 661. Therefore, what is now referred to as birthright citizenship is the concept that one’s place of birth determines one’s citizenship, regardless of the citizenship of one’s parents.
THE LEGAL BASIS FOR BIRTHRIGHT CITIZENSHIP IN THE UNITED STATES
Based on recent discussion of birthright citizenship in the media and by politicians, it appears that many Americans, if they know, believe that birthright citizenship derives from the 14th Amendment to the Constitution. But that understanding is only partially correct.
The 14th Amendment provides in pertinent part as follows:
“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.”
Therefore, the 14th Amendment clearly enshrines birthright citizenship in the Constitution, meaning that the only way to change it is by a two thirds vote in both houses of Congress and by three-quarters of the states; or by a constitutional convention. However, as the Supreme Court went to great lengths to establish in United States v. Wong Kim Ark, supra, the 14th Amendment was declarative of existing law, going back to colonial times, that prevailed at the time it was adopted and ratified. As the Court said at 169 U.S. at 676:
As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any person from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v Sandford (1857) 19 How 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States.
In other words, but for the infamous Dred Scott decision, all black person born in the United States would have been deemed citizens of the United States. After the Civil War, it was necessary to establish that Dred Scott was wrongly decided, and to make the common rule of birthright citizenship a constitutional right that could not be changed by statute. That is the status of birthright citizenship in the United States today.
HOW COULD BIRTHRIGHT CITIZENSHIP BE CHANGED OR LIMITED?
As noted above, there are only two ways to amend the Constitution. Article V provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. In either instance amendments proposed by Congress or by a constitutional convention must be ratified by three-fourths of the states (either state legislatures or state ratifying conventions). Given the difficulty of amending the Constitution, it seems highly unlikely that a repeal or restriction upon the 14th Amendment’s birthright provisions would ever be adopted.
Donald Trump, however, suggested that unnamed legal scholars believe that birthright citizenship may not apply to the children of aliens residing in the United States without proper documentation. This argument apparently hinges upon an interpretation of the phrase “subject to the jurisdiction thereof” in the 14th Amendment. The argument would be that so-called illegal aliens are not subject to the jurisdiction of the United States,
This issue was also thoroughly addressed in United States v. Wong Kim Ark, supra, and the result was not favorable to the proponents of the above argument. As discussed above, In Wong Kim Ark, the Court traced the history of birthright citizenship back to pre-colonial British law. The Court determined that persons born in an area under the control of the monarch owed their allegiance to the monarch and were also deemed protected by the monarch; that is the essence of citizenship. The key summation of the Court follows, 169 U.S. at 658 (emphasis added):
The fundamental principle of the common law with regard to English nationality was the allegiance ….or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual … [and] were predictable of aliens in amity, so long as they were within the kingdom. Children born in England, of such aliens, were therefore natural born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born and during within their hostile occupation of parts of the King’s dominions, were not natural born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said this day, within the jurisdiction of the King.
Therefore, the Court further concluded that when the 14th Amendment was adopted, the framers of the amendment meant the term ”subject to the jurisdiction” of the United States to have the same meaning as in common law; that is, people within the geographic power of the king and who therefore owed allegiance to the king. The Court summed up its conclusion in the following paragraph: 169 U.S. at 682 (Emphasis in original.).
The real object of the Fourteenth Amendment of the Constitution in qualifying the works [sic], “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been 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 – both of which, as has already been shown, by the law of England, and our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
In sum, the limiting term “subject to the jurisdiction thereof, was included to make it clear that the usual exceptions to citizenship by place of birth continued to exist. (It also addressed the unique issue in the United States of certain Indian tribes that were considered sovereign.) The give the phrase any other meaning would require a court to ignore history and the intent of the drafters of the 14th Amendment.
Nevertheless, some have seized upon the term “aliens in amity” in the Wong Kim Ark opinion as indicating that undocumented or illegal immigrant are not “aliens in amity” and therefore not within the jurisdiction of the United States. The phrase “in amity” means in friendship or in peace. Opponents of birthright citizenship for undocumented aliens contend such aliens do not come in friendship or in peace, because they come illegally. As the above quoted paragraph from the Wong Kim Ark opinion makes clear, however, this argument does not stand up to scrutiny. Clearly in English law the distinction between an alien “in amity” and other aliens was that those who were not “in amity” were “alien enemies in hostile occupation.” 169 U.S. at 682.
Furthermore, the argument that undocumented aliens are not within the jurisdiction of the United States, as that term has been interpreted and as its precursors were intended, is absurd. It means that an undocumented alien is not within the power of the king or within the power of the United States and therefore may violate the laws with impunity and without consequence. Thus, when pulled over by one of Sheriff Joe Arpiao’s deputies and asked to show his or her papers, the undocumented alien could simply reply, “I do not have to do that, because I am not within your jurisdiction.” Indeed, this argument runs counter to those who would deport all undocumented aliens. The government would not have the power to arrest and deport such persons, if the government did not have jurisdiction over them.
More recent Supreme Court decisions that have relied on the 14th Amendment and the Wong Kim Ark decision to resolve other issues relating to person of foreign descent who were citizens of the United States.
In Afroyim v. Rusk, 387 U.S. 253 (1967), the Court had to decide whether a naturalized U.S. citizens who voted in an election of his native country forfeited his U.S. citizenship. Notwithstanding an act of Congress to that effect, the Court held that the petitioner did not lose his U.S. citizenship by voting in a foreign election. The Court explained its reasoning as follows (Emphasis in original):
Citizenship is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its implied grants of power. ***** We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this nation against a congressional forcible destruction of his citizenship, whatever his creed, color or race.
More recently in Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court held that the equal protection clause of the 14th Amendment applied to undocumented school-age children who had been denied a free public education by the State of Texas. In doing so the Court directly addressed the phrase “subject to the jurisdiction thereof” in the 14th Amendment. The Court said, 457 at 211, (emphasis in original):
In appellants’ view person who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within the State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that construction….
In the quoted portions of the Court’s opinion it used the phrase “within the jurisdiction,” which appears in the equal protection clause of the Fourteenth Amendment; as distinguished from the phrase “subject to the jurisdiction” which appears in the citizenship clause. However, the Court concluded that the two phrases have the same meaning. Plyler v. Doe, 457 at 211 n. 10, supra.
The Court later added the following conclusion (emphasis in original):
The use of the phrase “within its jurisdiction” thus does not detract from, but rather confirms the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful … cannot negate the simple fact of his presence with the State’s territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State’s civil and criminal laws.
Therefore the argument that undocumented aliens are not subject to the jurisdiction of the United States is not only historically unfounded, but the Supreme Court has made it clear that such aliens are subject to the laws of State where they reside and of the United States. Moreover, the idea that Congress could constitutionally pass a law depriving children born in the United States of undocumented alien parents, or that the courts could so hold, also will run into stiff opposition from the Supreme Court. Those who would attempt to do so would be in the words of the Supreme Court “trifling with citizenship.”
John T. Hansen is an attorney in San Francisco, California, who has litigated civil rights and civil liberty cases at all levels of the United States Courts.