The 14th Amendment And Birthright Citizenship: What Are The Limits?
Citizenship is what makes a republic. (Mark Twain)
There’s been a lot of teeth gnashing since Trump signed an Executive Order ending birthright citizenship for children born to parents who are illegally in the United States.
Those on the right categorically state children of illegal immigrants are not entitled to birthright citizenship and point to the 14th Amendment. Those on the left categorically state children of illegal immigrants born in the United States are entitled to birthright citizenship and also point to the 14th Amendment. However, no one seems to be providing much factual support for their positions. So, let’s do some unpacking.
A good place to start is the 14th Amendment, §1, the relevant language of which states:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”[1]
The point of dispute is the language “subject to the jurisdiction thereof.” Those who argue the 14th Amendment provides universal birthright citizenship claim this language merely means that the parents are subject to the laws of the United States. That interpretation not only renders the clause meaningless but is also contrary to the interpretation of the 14th Amendment since it was ratified in 1868.[2]
An amendment modifies all conflicting text within previous amendments and the Constitution. If the 14th Amendment provided universal birthright citizenship it would have removed all citizenship restrictions on Native Americans and those born within the United States after 1868 would have been U.S. citizens. But they were not. To the contrary, for 56 years after the ratification of the 14th Amendment Native Americans born in the U.S. – whether on or off tribal lands – were not American citizens. Congress had to enact the Indian Citizenship Act of 1924 to remedy that. This in-and-of-itself establishes that the 14th Amendment did not create universal birthright citizenship.
Since the 14th Amendment did not create universal birthright citizenship, the question that needs to be answered is – who is entitled to birthright citizenship?
In the Supreme Court case of Elk v. Wilkins (1884) Mr. Elk, a Native American was denied citizenship even though he was born in the U.S.[3] In this case the Court held that in order to be “subject to the jurisdiction” of the United States, the parents had to owe allegiance to the United States and not another country or sovereign entity. Because Mr. Elk’s parents were Native Americans, the Court found they owed allegiance to a tribe – a sovereign entity – and therefore, were not “subject to the jurisdiction” of the United States, even though they were subject to the laws of the United States. As a result, Mr. Elk was excluded from birthright citizenship under the 14th Amendment.
The key holding in Elk is that a person must owe their allegiance to the United States in order to be “subject to the jurisdiction” of the United States.
What is required to show that a non-citizen’s allegiance is to the United States was answered twelve years later when the Supreme Court decided U.S. v. Kim Wong Ark (1898). Kim was the child of Chinese parents who were not U.S. citizens but were legally “domiciled” in the United States when he was born.[4] The Court held Kim was a citizen by birth because:
“Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are “subject to the jurisdiction thereof” in the same sense as all other aliens residing in the United States.” (emphasis mine).
The dispositive language here is “owe allegiance to, the United States so long as they are permitted by the United States to reside here…” This language clearly establishes two things. First, it reaffirms Elk that non-U.S. citizens must owe allegiance to the United States before they are “subject to the jurisdiction thereof.” Second, that in order to establish allegiance to the United States, non-U.S. citizens must be “permitted by the United States to reside” within the country. Then, and only then are they “subject to the jurisdiction” of the United States.
The only way the 14th Amendment can be squared with denying Native Americans birthright citizenship is to accept the holdings of Elk and Kim Wong Ark that “subject to the jurisdiction thereof” means (1) the person owes allegiance to the United States; and (2) with the exception of Native Americans, allegiance of non-U.S. citizens is established by them being “permitted” to reside in the United States. Therefore, those residing in the United States illegally are not “subject to the jurisdiction” of the United States and their children are not entitled to birthright citizenship.
Though there is no constitutional basis for universal birthright citizenship, there is a strong non-constitutional argument for it…history. The question is – will the Supreme Court remain faithful to the Constitution or rule based on what they deem to be pragmatic grounds?
In the 156 years since the 14th Amendment was ratified the U.S. has not raised the issue that birthright citizenship does not extend to children of unlawful residents. For the Supreme Court to now recognize that the 14th Amendment does not extend birthright citizenship to children of illegal migrants would cause significant upheaval. How many who have been recognized as American citizens in the past would have that citizenship stripped from them? I’m not sure the Court would make a decision that would end in this result, regardless of what the 14th Amendment states.[5]
The other option the Court has is to distinguish, or overturn, Elk and Kim Wong Ark, ignore the Indian Citizenship Act, and hold that “subject to the jurisdiction, thereof” merely means living in the United States and being subject to the laws of this country. In this manner they avoid the upheaval of ruling that children born to illegal aliens are not entitled to birthright citizenship, but at the cost of ignoring, and I believe, undermining the Constitution.
Which way will the Supreme Court go? I don’t know. What I do know is that as it stands now, the 14th Amendment does not extend birthright citizenship to children of those living in the United States illegally.
[1] The complete text of the 14th Amendment, §1 is:
“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
[2] Everyone living in any country, whether legally or not, is subject to the laws of that country. Therefore, if the meaning of “subject to the jurisdiction thereof” means nothing more than being subject to the laws of the U.S. it is redundant language that adds nothing to the amendment.
[3] Though Elk was born on Tribal lands, the holding extended to all Native Americans regardless of where in the U.S. they were born.
[4] Due to “exclusionary” laws Asians could not become naturalized citizens of the U.S.
[5] This issue is easily solved by Congress using its authority under Article I, §8 of the Constitution and grant citizenship to those born in the United States prior to Trump’s Executive Order.