Fourteenth Amendment, Section 1
There is a current movement in this country to end birthright citizenship - that is to end the automatic citizenship of children born in this country. It's a measure designed to end the manufactured crisis of "anchor babies" or "birth tourism." Designed to curb illegal immigration by making sure the children of illegal immigrants would still be illegal as well.
We are one of around thirty five countries that have this concept of citizenship by birth. Birthright citizenship, or jus soli (right of the soil), has a long history in America. It stems from the Citizenship Clause of the Fourteenth Amendment to the United States Constitution, stating that "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 clause was meant to override the 1857 Dred Scott case that denied African Americans citizenship. And while the Amendment seems clear and direct, the controversy and potential for ambiguity comes with the phrase "subject to the jurisdiction thereof." It is this phrase which Trump and other conservatives are using to point to the possibility of changing birthright citizenship to exclude children of non-citizens or residents.
There is support for this particular tactic in the Amendment's history. The sponsor of the Amendment Jacob Howard argued the clause had the same content as the Civil Rights Act of 1866 and should be read to exclude American Indians who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." However, this merely goes to framers intent which is persuasive but not controlling on our governance. In fact, you can also find support in the Amendment's history from three senators, including the author of the Civil Rights Act of 1866 Lyman Trumbull and President Andrew Johnson who argued that children born in the United States to parents who are not U.S. citizens and not foreign diplomats would become citizens by birth, with no opposition.
Further, the Supreme Court has addressed the issue of birthright citizenship in United States v. Wong Kim Ark, 169 U.S. 649 (1898), looking squarely at the "subject to the jurisdiction thereof" phrase. In the case, the had to decide whether a child born in the United States to parents of Chinese descent, who were subjects of China but had a permanent domicile and residence in the United States at the time of the child's birth. The court decided the "Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle."
If there were any question as to the courts intent in Wong Kim Ark, the court re-affirmed this principle in Plyler v. Doe, 457 U.S. 202 (1982). Though the Plyler case focuses on a state statute denying funding for the education of undocumented immigrant children in the United States, the opinion contains a dictum footnote in the majority opinion that stated that according to Wong Kim Ark, the Fourteenth Amendment's phrases "subject to the jurisdiction thereof" and "within its jurisdiction" were essentially equivalent, both referring primarily to physical presence, not political allegiance, and that Wong Kim Ark benefited the children of illegal as well as legal aliens. It's also important to note that while the dissent may have disagreed with the overall opinion in Plyler that the children had a right to a public education, they agreed with the majority regarding the applicability of the Fourteenth Amendment jurisdiction to illegal aliens. It would seem that birthright citizenship at this point is "settled law" and should rightly be considered so.
So when Trump says the following "It was always told to me that you needed a constitutional amendment. Guess what? You don't. You can definitely do it with an Act of Congress. But now they're saying I can do it just with an executive order. We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits. It's ridiculous. It's ridiculous. And it has to end," be aware. He cannot do it with an executive order. That would be unconstitutional for it's not in his powers. An Act of Congress could be enacted, but its constitutionality would be challenged given the Supreme Court precedent and it would need to be decided by the court.
Let's pray this does not need to go that far. Let's pray we affirm a fundamental principle in our Constitution, for we are not a country that is defined by race, origin, or creed. We are a nation of immigrants born here or naturalized and dedicated to an idea. A dream open to all who want to partake in it.
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