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Birthright Citizenship: A Fundamental Misunderstanding of the 14th Amendment

Election Law Reform Initiative Manager, Senior Legal Fellow

birthright citizenship argumentative essay topics

Key Takeaways

Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally.

Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.

Birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution.

What’s the citizenship status of the children of illegal aliens? That question has spurred quite a debate over the 14th Amendment lately, with the news that several states—including Pennsylvania, Arizona, Oklahoma, Georgia, and South Carolina—may launch efforts to deny automatic citizenship to such children.

Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally. But that ignores the text and legislative history of the 14th Amendment, which was ratified in 1868 to extend citizenship to freed slaves and their children.

The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.

Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.

But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.

The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.

This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.

Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.

As John Eastman, former dean of the Chapman School of Law, has said, many do not seem to understand “the distinction 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 requires allegiance to the sovereign as well.”

In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.

American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.

Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by “birthright” supporters due to its overbroad language, the court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.

Of course, the judges in that case were strongly influenced by the fact that there were discriminatory laws in place at that time that restricted Chinese immigration, a situation that does not exist today.

The court’s interpretation of the 14th Amendment as extending to the children of legal, noncitizens was incorrect, according to the text and legislative history of the amendment. But even under that holding, citizenship was not extended to the children of illegal aliens—only permanent, legal residents.

It is just plain wrong to claim that the children born of parents temporarily in the country as students or tourists are automatically U.S. citizens: They do not meet the 14th Amendment’s jurisdictional allegiance obligations. They are, in fact, subject to the political jurisdiction (and allegiance) of the country of their parents. The same applies to the children of illegal aliens because children born in the United States to foreign citizens are citizens of their parents’ home country.

Federal law offers them no help either. U.S. immigration law (8 U.S.C. § 1401) simply repeats the language of the 14th Amendment, including the phrase “subject to the jurisdiction thereof.”

The State Department has erroneously interpreted that statute to provide passports to anyone born in the United States, regardless of whether their parents are here illegally and regardless of whether the applicant meets the requirement of being “subject to the jurisdiction” of the U.S. Accordingly, birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution.

We are only one of a very small number of countries that provides birthright citizenship, and we do so based not upon the requirements of federal law or the Constitution, but based upon an erroneous executive interpretation. Congress should clarify the law according to the original meaning of the 14th Amendment and reverse this practice.

Originally published by Fox News in 2011

This piece originally appeared in The Daily Signal

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Birthright Citizenship in the United States Essay

The issues of illegal immigration have been discussed for decades in the United States. The inflow of immigrants from all around the world is rather intense. According to the statistics, since the beginning of the 1990s, the rates of illegal immigration in the country grew steadily throughout the next decade; and by 2007, it has reached its peak when the approximate number of unauthorized immigrants comprised 12.2 million people (Krogstad and Passel par. 1).

The overall size of the immigrant population in the United States has reached over 42 million people in the second half of 2015 (Zeigler and Camarota par. 1). It goes without saying that such high rates of immigration produce a massive impact on all the spheres of social, economic, and political aspects of the life of the nation.

Logically, the questions as to the ways of handling the problem of illegal immigration in the most effective way have been discussed. Currently, the U. S. legislation automatically provides citizenship to all the individuals born on the territory of the country even if they are born to a family of undocumented immigrants (Eisgruber 54). This policy has been viewed as a factor preventing the illegal immigrants from being deported. As a result, the individuals and groups who are in favor of deportation as a way to slow down the inflow of the illegal population have raised a question concerning the banning of this policy.

The request is motivated by the argument that the 14 th Amendment that grants automatic citizenship covers only the families of citizens (Ngai 2524). Currently, the opinions opposing and supporting the automatic citizenship are clashing.

As a solution to the dilemma, I propose that the individuals who request that the Supreme Court changes the interpretation of the 14 th Amendment and ban the policy, turn their attention to the fact that having a child who is registered as a citizen of the USA does not prevent the undocumented immigrants from deportation. First of all, in order for the family of an American citizen to obtain green cards, the named individual is to be 21 years or older to petition for the relatives (NOLO par. 3).

Secondly, a child is viewed as a tie to the country only if the parents do not have criminal records; also, having a positive and ongoing employment history and a lengthy stay are reasons just as powerful as a baby to keep the undocumented individuals in the country. That way, banning automatic citizenship is not likely to make any differences on the deportation success.

Since Saint Leo University promotes Christian values and moral growth, the most fair way to address the problem following the University’s worldview would be to permit automatic citizenship to the children born in the USA but keep the government’s right to deport families with under-age children in case if the parents are criminals. In order to avoid further protests from the public, the population is to be thoroughly informed about the mechanisms according to which deportation works, and the role birthright citizenship plays in it. In my opinion, the deportation is to consider the history of the undocumented immigrants and such factors as the duration of stay, employment patterns, and behaviors and the primary determiners of whether or not the individuals should be deported.

Works Cited

Eisgruber, Chistopher L. “Birthright Citizenship and the Constitution.” N.Y.U. Law Review 72.54 (1997): 54-96. Print.

Krogstad, Jens Manuel and Jeffrey S. Passel. 5 facts about illegal immigration in the U.S . 2015. Web.

Ngai, Mae M. “Birthright Citizenship and the Alien Citizen.” Fordham Law Review 75.5 (2007): 2521-2530. Print.

NOLO. Will having U.S. citizenship children prevent deportation of undocumented immigrant? 2016. Web.

Zeigler, Karen and Steven A. Camarota . Immigrant Population Hits Record 42.1 Million in Second Quarter of 2015 . 2015. Web.

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IvyPanda. (2020, September 11). Birthright Citizenship in the United States. https://ivypanda.com/essays/birthright-citizenship-in-the-united-states/

"Birthright Citizenship in the United States." IvyPanda , 11 Sept. 2020, ivypanda.com/essays/birthright-citizenship-in-the-united-states/.

IvyPanda . (2020) 'Birthright Citizenship in the United States'. 11 September.

IvyPanda . 2020. "Birthright Citizenship in the United States." September 11, 2020. https://ivypanda.com/essays/birthright-citizenship-in-the-united-states/.

1. IvyPanda . "Birthright Citizenship in the United States." September 11, 2020. https://ivypanda.com/essays/birthright-citizenship-in-the-united-states/.

Bibliography

IvyPanda . "Birthright Citizenship in the United States." September 11, 2020. https://ivypanda.com/essays/birthright-citizenship-in-the-united-states/.