The latest rumblings of the current administration inform us of President Trump’s plan to completely ignore the Fourteenth Amendment of the U.S. Constitution, and instead sign an executive order that would remove the right to citizenship for children born in the United States to non-U.S. citizens. Specifically, the Amendment reads 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.”

This is not the first time the words of the Fourteenth Amendment have become part of the public discourse. Members of Congress have attempted to limit the rights of immigrants by advocating the denial of birthright citizenship to those born to undocumented parents in the United States. But under the Citizenship Clause of the Fourteenth Amendment, all persons born or naturalized in the United States who are also “subject to the jurisdiction of the United States” are citizens of the United States.

Much of the current debate turns on the meaning and intention of the phrase “subject to the jurisdiction of the United States.” The argument put forth is that undocumented immigrants are not under the jurisdiction of the United States, and so the children of undocumented immigrants also do not fall within that jurisdiction. Therefore, such children although born in the United States, should not be American citizens.

The argument is flawed when scrutinized in context. Upon its passage, the Fourteenth Amendment effectively reversed the decision in the famous case of Scott v. Stanford. Scott was an enslaved African American who unsuccessfully sued in federal court for his freedom. The Supreme Court held that neither slaves nor free descendants of slaves were citizens. Consequently, Congress enacted the Fourteenth Amendment to specifically enable African-Americans born in the United States to obtain citizenship at birth.

It is worth mentioning that the author of the Citizenship Clause confirmed in his original debates that the phrase “subject to the jurisdiction of the United States” was specifically designed to exclude only foreigners who belonged to families of ambassadors or foreign ministers, and Native Americans who maintained their tribal ties. This was confirmed in a number of cases including United States v. Wong Kim Ark, which involved a man born in the United States to Chinese parents who were statutorily ineligible for naturalization because of their race.  The Court held that Wong Kim Ark, who was born in San Francisco, was in fact entitled to birthright citizenship, stating that the term “subject to the jurisdiction of the United States” excluded two classes of people other than Native Americans: children born of alien enemies in hostile occupation, and children of diplomats of a foreign state.  The phrase was never intended to exclude anyone else.  (Incidentally, Congress subsequently passed the Indian Citizenship act of 1924, which granted full U.S. citizenship to Native Americans.)

Opponents of birthright citizenship argue that because undocumented parents still owe their allegiance to a foreign country, their children born in the United States do not owe complete allegiance to the United States, and consequently should be denied citizenship. But it is important to remember that the framers of the Fourteenth Amendment make no reference whatsoever to allegiance. This is because allegiance is loyalty to the place of one’s birth, and not to the citizenship of one’s parents.

So while there are some who believe the Fourteenth Amendment should exclude those born in the United States to undocumented parents, history suggests otherwise. The history behind the Citizenship Clause of the Fourteenth Amendment does not seem to be making its way into the public dialogue. Instead there is a movement underway to reshape the Constitution from a document historically interpreted to grant rights to those living in the United States, to one that limits and even denies those rights. The call is to redefine the Fourteenth Amendment to exclude citizenship for children born in the United States to parents who are undocumented, or in temporary lawful status.

A popular explanation for this movement is that immigrants who enter the country illegally specifically come to the United States to give birth, to gain citizenship for their children and thus obtain legal status themselves. Misinformed proponents of this theory callously refer to such children as “anchor babies.” The reality however, is that most undocumented people come to the United States for safety and/or economic reasons, and “anchor babies” are simply not part of the immigration trend. Under current law, U.S. citizens must wait until they are at least 21 years of age to petition for permanent residence for their parents. Simply because a child is born in the United States does not mean that the parents are allowed to stay permanently. To the contrary, the U.S. Citizenship and Immigration Services (formerly INS) is not reputed to be an agency designed to keep families together.

Equally misinformed is the argument that deporting “anchor babies” would decrease overall illegal immigration. In The Demographic Impacts of Repealing Birthright Citizenship, the Migration Policy Institute estimates that denial of U.S. citizenship to children born to unauthorized immigrants would actually increase the unauthorized population from its current 10.8 million to 16 million by 2050. Amending the Fourteenth Amendment of the Constitution to prevent birthright citizenship would only escalate the very problem it is intended to resolve.

All three branches of our federal government have confirmed birthright citizenship. To eliminate this right would be unconstitutional and impractical. The law has not changed since United States v. Wong Kim Ark, and neither has the Fourteenth Amendment. What has changed is the escalating and complex problems of illegal immigration, and public opinion toward undocumented immigrants. While it is true that our country has an immigration problem, that problem is not with undocumented immigrants, but rather with a broken system in need of significant reform. While we may disagree over our country’s immigration policies, we must agree that the way we respond to those policies cannot include tampering with the Fourteenth Amendment. Doing so would show a blatant disregard for the provisions of the Constitution – provisions designed to expand civil rights, not limit them – and would violate over one hundred years of legal progress by undermining the civil victories of our past.

John Medeiros is a partner with the immigration law firm, Myers Thompson in Minneapolis, Minnesota. He can be contacted at www.myersthompson.com.

Suggested citation: John Medeiros, Birthright Citizenship and the U.S. Constitution, JURIST – Professional Commentary, November 5, 2018, http://jurist.org/forum/2018/11/Medeiros-birthright-citizenship-us-constitution.php

This article was prepared for publication by Leanne Winkels, a JURIST Assistant Editor. Please direct any questions or comments to her at commentary@jurist.org