USA TODAY International Edition
Courts should settle birthright citizenship
Debate comes down to 6 words in Constitution
President Donald Trump’s intention to end “birthright citizenship” by executive order has pushed a heated debate over immigration into a virtual inferno of election politicking. At base, however, it is one of the longest standing debates in our Constitution: whether the 14th Amendment affords citizenship to anyone born on our soil. There are good-faith arguments on both sides, and this order could force the federal court to come to a clear resolution.
It comes down to six poorly chosen words: “and subject to the jurisdiction thereof.” Those words come in the middle of an otherwise clear statement that “all persons born or naturalized in the United States ... are citizens of the United States.” The words have long been argued by some to mean that the amendment applies only to citizens and legal residents who are subject fully to U.S. jurisdiction.
The primary purpose of the amendment was to ensure that freed slaves after the Civil War would have full rights of citizenship in every state. When the amendment was drafted, various senators indicated that they intended it to have the more narrow meaning.
Others have argued that the clause refers to people being subject to federal laws, not a matter of allegiance to that authority. “Jurisdiction” refers to falling under the authority of a legal system.
There is a middle position: The reference to “jurisdiction” left the decision of the meaning of citizenship up to Congress to decide.
The Supreme Court offered limited light on the subject with its decision in United States v. Wong Kim Ark in 1898, when it ruled 6–2 that “the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory ... including all children here born of resident aliens.”
That is often cited as establishing birthright citizens for everyone, but those parents were legal residents. Most advocates of the narrower meaning agree that both citizens and legal residents are deemed “subject to the jurisdiction of the United States.”
America is actually in the minority of nations that recognize birthright citizenship. The rule of jus soli (or right of the soil) is recognized in an unrestricted sense in roughly 30 countries.
Our European allies and most countries in the world follow the rule of jus sanguinis (or right of blood) and refuse to recognize citizenship solely because someone was on their territory at birth.
The politics on this have ebbed and flowed in America. An estimated 7.5 percent of births here (about 300,000 births a year) are to undocumented immigrants. Democrats joined Republicans in the past in seeking to bar unrestricted birthright citizenship. Indeed, in 1993, then-Sen. Harry Reid, D-Nev., introduced legislation to limit birthright citizenship to the children of U.S. citizens and legal residents.
Trump clearly believes that this is good politics, but the question is whether there is good law to go with it.
Under two of the three interpretations, Trump cannot do what he described. If the Constitution adopts the unrestricted approach or leaves the matter to Congress, a unilateral action would not suffice. It is only if the court adopts the narrow interpretation that such an order might succeed. In other words, the question of means will depend on the meaning of the amendment. All roads lead to the same six words. The meaning of those words might be answered by the newly reconstructed Supreme Court with two Trump appointees — Neil Gorsuch and Brett Kavanaugh. The textual and historical arguments supporting the narrower interpretation are likely to appeal to those justices and could leave Chief Justice John Roberts as the swing vote.
This year is the 150th anniversary of the ratification of the 14th Amendment. That is 150 years too long to resolve the question of what constitutes a citizen of the United States.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University.