RUTHFULLY YOURS

President Donald Trump has triggered the beginning of a national debate on automatic birthright citizenship. On his first day back in office, the president signed an executive order ending the practice. Almost immediately a court temporarily blocked the executive order. At the same time, legislation was quickly introduced in Congress to end automatic birthright citizenship, essentially supporting the executive order. No doubt this dance will continue with appeals and counter-appeals in the courts and actions in the Congress.

Let us step back and review the over 150-year history of birthright citizenship and its significance for the core American principle of “government by the consent of the governed.”

The majority of the American political and legal establishment argues that the 14^th Amendment is clear: Anyone born in the United States (with the exception of the children of foreign diplomats and enemy soldiers) is automatically an American citizen whether their parents are in the country legally or illegally.

The relevant clause of the 14^th 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.” Although there is no explicit exception for diplomats and enemy soldiers, these exceptions have long been understood to be covered by “jurisdiction.”

The Contours of the Debate

Those who believe this clause mandates automatic birthright citizenship point out that the Supreme Court in U.S. v. Wong Kim Ark in 1898 ruled that the 14^th Amendment held that a child born to foreign parents in the United States was an American citizen. Wong Kim Ark was born in San Francisco to Chinese parents who were legally in the United States, but not American citizens. Ark claimed American citizenship through the 14^th Amendment. The Supreme Court agreed and in a 5-4 decision stated: “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.”

John Yoo, a leading legal supporter of automatic birthright citizenship, declares that in Wong Kim Ark, “the Supreme Court read the constitutional text, structure, and history exactly right.”

James Ho, another legal supporter of automatic birthright citizenship, writes that

nothing in text or history suggests that the drafters [of the 14^th Amendment] intended to draw distinctions between categories of aliens. To the contrary, text and history confirm that the Citizenship Clause reaches all persons who are subject to U.S. jurisdiction and laws, regardless of race or alienage.

Hence, this scholar argues, the 14^th Amendment dictates that the children of illegal aliens are citizens as much as the children of American citizens and legal residents.

An opposing group of scholars and elected officials disagrees, arguing that the 14^th Amendment does not require automatic birthright citizenship for the children of foreigners, including the children of illegal immigrants, born within the geographic limits of the United States. Those who oppose automatic birthright citizenship maintain that to understand this issue we must look at the origins, purpose, and intent of the 14^th Amendment.

After the Civil War, the Republican Congress wanted to ensure that newly freed slaves and their children were recognized as equal citizens of the United States. To this end, Congress passed the Civil Rights Act of 1866. The Act declared, “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed [i.e., those subject to tribal, not U.S., authority], are hereby declared to be citizens of the United States.” It is clear that the language of this citizenship clause, which includes “subject to any foreign power,” would exclude automatic birthright citizenship. Obviously, the illegal immigrant is subject to a foreign power and, since the status of children follows that of their parents, so too are their children.

In 1868, the same Reconstruction Congress that passed the Civil Rights Act enacted the 14^th Amendment. This was done to codify the citizenship rights of all black Americans into the Constitution. The congressional debate over the citizenship clause of the 14^th Amendment suggests that it was intended by its framers to exclude subjects of foreign powers, just as the Civil Rights Act did.

What Does “Jurisdiction” Mean?

The debate turns largely on the meaning of “jurisdiction.” The supporters of automatic birthright citizenship believe that jurisdiction means what was sometimes called territorial jurisdiction — that is, simply being subject to the laws of the United States. But opponents claim that jurisdiction means “complete jurisdiction.”

A German tourist in the United States is subject to the jurisdiction of American law. He must obey traffic rules, and if he commits a crime such as robbery he will be prosecuted. On the other hand, the German tourist, unlike an American citizen, will not be called for jury duty, or be drafted in the U.S. military, or be allowed to vote in federal elections. Is the tourist “subject to the jurisdiction” of the United States, as that language is used in the 14th Amendment?

During the congressional debates on the amendment, its framers were repeatedly asked about the meaning of the phrase. Did that mean that the children of foreigners had automatic birthright citizenship?

One of the main framers of the 14^th Amendment, Senator Lyman Trumbull of Illinois, chairman of the Senate Judiciary Committee, explained that the phrase “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else…[and] subject to the complete jurisdiction of the United States.” Trumbull declared Indians were not “subject to the jurisdiction” of the United States, because their allegiance was to their tribal authorities rather than to the American government.

The author of the citizenship clause, Senator Jacob Howard of Michigan, likewise explained that “subject to the jurisdiction” referred to allegiance. Thus, excluded from automatic birthright citizenship, according to Howard, were not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” There is controversy over the bracketed “or” in Howard’s language, which supporters claim changed Howard’s meaning.

Michael Anton rebuts this claim in detail. He begins by quoting Senator Trumbull’s statement above (“not owing allegiance to anybody else”) to reinforce the argument that the senators were excluding all foreigners and aliens, not simply the families of ambassadors.

Edward J. Erler, another leading scholar opposing automatic birthright citizenship, writes: “‘subject to the jurisdiction’ does not simply mean, as is commonly thought today, subject to American laws and courts. It means owing exclusive political allegiance to the U.S.”

In contrast, James Ho dismisses the framers’ references to “allegiance” as “stray comments.”

Opponents such as John Eastman note that when the Supreme Court first addressed the Citizenship Clause (Slaughter House Cases, 1873) it stated, “the phrase ‘subject to the jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Ho dismisses this language as “pure dicta,” an aside, not relative to the issues of the Slaughter-House Cases.

Opponents also refer to Elk v. Wilkins (1884). In this case, Elk, an American Indian, claimed U.S. citizenship because he was born within the territorial limits of the United States. The Supreme Court denied his claim of citizenship because his primary allegiance was to another political community, his tribe, rather than the United States. American Indians later received full citizenship through Congress in the Indian Citizenship Act of 1924.

As noted earlier, supporters place strong emphasis on the Supreme Court decision Wong Kim Ark (1898), which ruled that any child born within the United States (minus the children of diplomats and enemy soldiers) was automatically a citizen of the United States. Opponents contend that Ark’s parents were legal, not illegal, residents and that children of illegal aliens (a category that did not exist at the time because there were no immigration restrictions) should be treated as a different matter altogether.

Common Law and the Nature of Citizenship

Supporters of automatic birthright citizenship consider it a continuation of the English common law tradition of jus soli (literally “right of soil”), under which anyone born on the king’s soil is the king’s perpetual subject.

Opponents argue that the American revolutionaries in the Declaration of Independence disavowed the common law idea of “subjectship.” English common law refers to subjects, not citizens. A subject’s allegiance is to his monarch; a citizen’s allegiance is to his fellow citizens.

Unlike British subjectship, new American citizenship was not perpetual and involuntary. Instead, it was based on consent. The argument between the British concept of subjectship and the American concept of citizenship was a major reason for the War of 1812. In the early 1800s, the Royal Navy boarded American ships and impressed British-born American sailors into his majesty’s service on the grounds that they owed perpetual allegiance to the Crown (“once an Englishman, always an Englishman”). The Americans responded with force. On June 18, 1812, Congress repudiated the common law assertion of perpetual citizenship with a declaration of war against Great Britain.

While much of the English common law tradition was obviously accepted by the American legal system, the concept of perpetual allegiance was not. Indeed, the idea that American citizenship (unlike English common law) was based on consent was reinforced by the Expatriation Act of 1868 (again, a law enacted by the Reconstruction Congress). Under the act, Americans were legally allowed to renounce their citizenship, which was not possible under English common law. Thus, Senator Howard declared that American citizenship was based on “natural law and national law,” not on the subjectship of the common law.

Section 5 and the Prerogatives of Congress

The key question is whether automatic birthright citizenship is required by the 14^th Amendment or not. The supporters of automatic birthright citizenship insist that it is a constitutional guarantee made clear in both text and history. However, opponents in Congress and the legal profession insist that Congress could pass a law ending automatic birthright citizen that would be upheld by the Supreme Court.

They maintain that Section 5 of the 14^th Amendment — “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article” — affords Congress the power to pass legislation clarifying the meaning of the phrase “subject to the jurisdiction.”

Congress has exercised this power in the past; as noted, Congress extended full citizenship to American Indians in 1924. They could not and would not have done so if that question had already been settled by the 14^th Amendment.

Supporters declare that the courts will (and should) declare any congressional legislation attempting to limit automatic birthright citizenship unconstitutional based on the legislative history of the 14^th Amendment; an analysis of the Wong Kim Ark (1898) decision; previous discussions on the meaning of “subject to the jurisdiction” favoring the idea that jurisdiction means subject to the law within a national territory; and, most significantly, stare decisis, the prevailing interpretation in law and practice for the past century that favors automatic birthright citizenship.

Opponents counter that analysis of the history of the 14^th Amendment (as just discussed) favors their position. Most importantly, they maintain that the times have changed. Mass illegal migration did not exist in the past. They echo Abraham Lincoln in arguing that “As our case is new, so we must think anew, and act anew.”

The Significance of Trump’s Executive Order on Birthright Citizenship:

President Trump has placed this once relatively obscure legal issue into the public square of American political democracy. He has, in essence, democratized the issue. Automatic birthright citizenship is no longer solely a technical question confined to legal elites, but a vital political and policy issue, a space where the people’s voice should be heard. Trump’s executive order and the proposed congressional legislation mean that the democratically elected branches of government have joined the conversation in deciding the critical question of who should or should not automatically become an American citizen.

This is not a transient issue that will simply disappear. If congressional efforts to end automatic birthright citizenship fail in 2025 (due, perhaps, to a filibuster), there is no reason to assume that these efforts will not resurface. The question has become a major political, constitutional, and, indeed, “regime” issue.

It is a regime issue because the status quo is at odds with a central concept of the historic American regime: government by consent of the governed. Today, the unlawful actions of millions of illegal aliens who enter our country without the consent of American citizens ultimately determine who is a citizen of the United States. But, who should determine American citizenship policy? Who should be the deciders? American citizens through the democratic process or millions of illegal aliens through non-consensual entry into the territory of the United States?