What is Birthright Citizenship?

“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.”

United States Constitution, Amendment XIV, Section 1

In the flurry of his first handful of days in office, Trump has handed down a wide assortment of executive orders.  All following the Project 2025 playbook.  All expected following the promises or threats he made in the campaign, touching on his favorite topics:  gender issues, government bureaucracy, isolationism, and immigration enforcement to name a few. 

Under immigration enforcement, Trump released probably his most controversial executive order.   Executive Order Protecting the Meaning and Value of American Citizenship.  A lot of words to make his end goal sound a lot nicer and more legitimate than it deserves.  Put simply, this is his order to end birthright citizenship.

Which raises the question asked today - what is birthright citizenship?

Put simply, birthright citizenship is the idea that citizenship in a country results from the circumstances surrounding one’s birth.  Not from race, religion, ethnic heritage, or creed, but by nature of birth.  In America, birthright citizenship is obtained either by being born in a United States state or territory or by being born as the child of at least one United States citizen, regardless of location.  The first essentially saying anyone born in America is an American, and the second saying the children of Americans are American wherever they are born.

It’s the simplest form of citizenship, in complete contrast to naturalization or the legal immigration process.  Immigrants become citizens through a naturalization process involving applications and interviews and tests and oaths.  Birthright citizens are born here.

The concept is one entrenched in our constitutional amendments.   The Fourteenth Amendment, a cornerstone piece of our jurisprudence, lays its foundation simply and perfectly in the first section of the Amendment. 

“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.” [emphasis added]

The Amendment was written as a response to the infamous Dred Scott v Sanford (1857) case, in which African Americans were denied citizenship regardless of the location of their birth or their status as free men (given the times).  The Fourteenth Amendment in response, confirmed the citizenship of those people and their entitlement to representation in our government.

It’s settled law and a foundational piece of our civil rights.

It’s been confirmed, affirmed, and expanded upon in the Indian Citizenship Act of 1924 and the Immigration and Nationality Act of 1952.

And now, Trump is determined to destroy it, all to remove the possibility of ‘anchor babies,’ or women coming to America, legally or illegally, just to have their child born in America and become a citizen by birth.

The United States of America as a country is unique in many ways, but perhaps most striking in that there is really no true native child of the United States of America.  What I mean by that, is that the nation, as a country again, has always been a collection of immigrants and their children united not by race, religion, ethnicity, or any of the traditional markers of a country, but instead united by a set of ideas.  The borders of our country outlining primarily the bounds of the people held together by those ideas.  

In that respect, it makes sense that our citizenship generally was provided by the “right of the soil”, jus soli.  The idea that, indeed, this land was made for you and me, and that those who were born here, regardless of family history and background, could be part of that united idea.

It’s baked into the concepts and precepts that we teach and proclaim regarding what it means to be an American.  To be part of this great melting pot.  “Give me your tired, your poor, your huddled masses yearning to breathe free.”  The promise of coming here and that those born here are born in the “land of opportunity.”

In all, there are around 30 countries which maintain this idea of the right of the soil, most in the Americas, including Canada and Mexico.  In some ways a recognition that this “New World” would have new ideas about citizenship and what makes a country.

Trump’s policy would be to revert to a very old idea.  The “right of blood.”  Jus sanguinis.  To be a citizen is to be born of citizens.  To be “full blooded American.”  As is that had any basis in our history.  

I don’t mean to diminish the concept citizenship being passed by parentage.  This is a part of the current basis for our citizenship.  It’s how American’s traveling abroad for pleasure, work, or duty, that happen to birth a child outside the United States, can still bring that child home and have it be a citizen.  

But it’s the exception or the outlier, not the primary rule.

I get it, to many, this is quibbling over semantics.  Over a small change in the workings of the law, but it represents a fundamental shift in how we perceive ourselves and our country.  If citizenship is only passed by blood, or granted to those we deem worthy through naturalization (which is a grueling process), then we are saying America is no longer an idea, but a defined set of people and it’s closed.  The Golden Door is slammed shut.

We’re not different than any other nation.  We’re not better or unique.  America as that great experiment is done.

And that seems to really be the case if we’re okay with sending ICE agents into an elementary school during school hours, as they were today in Chicago.

It is important to note that a federal judge has recently blocked Trump’s executive order from taking effect, calling it “blatantly unconstitutional.”  U.S. District Judge Coughenour in Seattle expressed  incredulity at how any member of the Bar could argue this order was Constitutional.  Judge Coughenour will hear further argument on February 6.

Of extreme irony in the matter, is how the United States Justice Department defended this order, by arguing that the children of Native Americans aren’t US Citizens.  That’s right, they argued that the people who have the most right to be considered part of this country are not citizens.  They relied on an old Supreme Court case Elk v Wilkins from 1884, in which the court found because members of Native American tribes owe allegiance to their tribe first and foremost, that they were not subject to the jurisdiction of the United States as provided for in the Amendment and were then not constitutionally entitled to citizenship.  In the first place it’s a stretch argument and one overturned by the Indian Citizenship Act of 1924.  In the second, it’s an incredible reach to apply it to today.

It just goes to show the extremes Trump will go to in order to make sure his agenda, or Project 2025, be achieved.  Damn the consequences.

Hopefully the rest of us can maintain the memory of what we were.

“‘Keep, ancient lands, your storied pomp!’ cries she

With silent lips. ‘Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!’”

What Is An American?

"What then is this American, this new man?"

J. Hector St. John De Crevecoeur
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Since before the foundation of our country, this has been the existential question of our time - what is an American?  What does it mean?  How is it defined?  Who qualifies as being an American?

With recent events, I fear we need to ask ourselves this question again.  Now more than ever.

It is a harder question to answer in the affirmative than you would imagine.

We can say for certain what it is not.  American is not a singular race, nor is it a particular people group.

There is not a singular American culture.  There is no one American cuisine, no one dialect, no one American experience.

We are not of a single religion, despite some protestations otherwise.  There is no Church of America.

We are not all one color, one size, one shape.

We share no singular origin.

Further, American is not bound by a specific geographic location.  Not bound to a singular language.  Not bound to a single history.

Instead, we are what we have always been - a diverse group of outcasts held together by a collection of ideals.

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"The chief ideal of the American people is idealism."

President Calvin Coolidge

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We hold tightly to some of the best ideals ever put to paper.  That all men, that all people are created equal.  That they are endowed by their creator with certain inalienable rights - by definition, God given rights that cannot be taken away.  Rights to life.  To liberty - to freedom in many senses of the word.  To the pursuit of happiness.

We believe the government is of the people.  That it derives its power and its life from the very people that it governs.  That it is crafted and sustained by the people.  They fill its halls, they make the laws, and they in turn enforce them.  And that ultimately it exists for the people.  Government is for the benefit of the people, not the other way around.

That we have given the government a purpose.  A reason for existing.  To form a more perfect Union.  To establish justice.  To insure domestic tranquility or peace.  To promote a general level of welfare.  To secure the blessings of liberty, not just for ourselves, but for those that will come behind us.

We have not always done a great job in living up to these ideals.  We have struggled with equality for all people.  We have struggled with having the government benefit the governed, not the governors.  We struggle with securing the blessings of liberty for our posterity, and not just being focused on the now, the immediate, the self-centered us.

But, by and large, we as Americans define ourselves by these ideals.  These lofty goals that bind us when we pledge our allegiance to this nation.

The problem with having ideals at the center of a national identity is that they are intangible; they only have the meaning we assign to them.  

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"I don't know what you mean by 'glory'," Alice said.

Humpty Dumpty smiled contemptuously.  "Of course you don't - till I tell you.  I meant 'there's a nice knock-down argument for you!'"

"But 'glory' doesn't mean a 'nice knock-down argument'," Alice objected.

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean - neither more nor less."

"The question is," said Alice, "Whether you can make words mean different things - that's all."

"The question is," said Humpty Dumpty, "which is to be master - that's all."

Through the Looking Glass

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As discussed above, we have struggled in the past because we have tried to change their definitions.  We want to be able to define who qualifies as "men" when we refer to "all men" being created equal, so that we can control exactly who we must acknowledge.  We have excluded based on gender, believing it only referred to men specifically.   We have exclude based on color, believing evil notions of racial superiority.  Even codifying a system in which a darker color would make someone 3/5 of a person.  A contradiction right in our founding documents.

We are at this point again.  We are seeking to control the definitions.

Our president has long been seeking to end birthright citizenship.  The principle of jus soli, or the idea that you are a citizen of the place where you were born.  That you are forever tied to the soil your feet land on.  This week, he ended birthright citizenship for children born overseas to United States service members.  Think through that, we've ended birthright citizenship for the children who for whatever reason are born overseas to the very people defending our country.

We're narrowing our definitions for political gain.  We want to stop "anchor babies."  We want to discourage or outright end most forms of immigration.  We want to pick and choose who can be an American.

As if that were not dangerous enough, it goes even further than that.  When our identity is tied up in our ideals, we can accuse those who do not hold up to our version of those ideals as no longer belonging.  Those on the right can accuse those on the left of being "un-American," and vice versa.  To accuse those who disagree as being disloyal.  To suggest that particular groups should leave.

It's no longer enough to cling to these ideals.  We're requiring an extra claim; a stronger tie.

We're looking to require uniformity where liberty once reigned.

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"It has always been cited as an irrepressible symptom of America's vitality that her people, in fair times and foul, believe in themselves and their institutions."

Alistair Cooke

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We have to recognize that differences and disagreements are part of our national identity.  That we are meant to wrestle with how to proceed as a nation.  It's meant to be hard.  Because when it's hard, when we push through it and reach compromise and consensus, it's worth it.

We have to recognize that there will be times we have to be pushed into progress when we don't want to face it.  We as a nation had to have racial equality thrust upon us for it to take root.  And we are still having to deal with those consequences.

We have to recognize that it is our differences that define us.  That there is a constant pull in this country between experiences.  Between black and white.  Male and female.  North and South.  East and West.  Coastal and fly-over.  City and country.  1st Generation and 3rd/4th/5th generation.  Naturalized and Immigrant.  Religious and not.   Further, we must recognize that it is these differences that make us greater than the sum of our parts.

We have to recognize how we got here.  Who we are.

We are a nation of outcasts and runaways.  There are too few of us who can claim an uninterrupted direct link to the soil of this nation when we trace our full lineage.  For the vast majority of us, we are the products of immigration to this land, and often, we represented the groups our old countries wanted to get rid of.  Those groups they didn't want.

We were the religious heretics, the undesirables, the lower social classes.

The tired.  The poor.  The huddled masses.  The wretched refuse.  The home-less.  Tempest-tossed.

We are a nation of dreamers.  We came together, we sought this land, because we believed in its ideals.  Because we sought freedom.  Liberty.  Equality.  The American Dream.  The eternal promise.  The huddled masses yearning to breathe free.

We are a nation of borrowers.  We have borrowed pieces from every culture, every race, every nation, every tongue, and every tribe to cobble together this country we call America.  We see this in our language, in our food, in our art, and in our principles of government.

This is how our melting pot is formed, in the best sense of the analogy.  From each group that comes to our shores, they contribute the best of themselves.  They join and impact our culture, and we in turn, impact theirs.

We are the ultimate shared experience.  The ultimate neighborhood.  The ultimate village to raise a person.  To better each other.  To love each other.  To share with each other.

Maybe then, we can truly live up to the ideals that we claim.  Maybe then we will be the western pilgrims.

Maybe then we can call ourselves Americans.

"He is an American, who, leaving behind him all his ancient prejudices and manners, receives new ones from the new mode of life he has embraced, the new government he obeys, and the new rank he holds.  He has become an American by being received in the broad lap of our great Alma Mater.  Here individuals of all races are melted into a new race of man, whose labors and posterity will one day cause great changes in the world.  Americans are the western pilgrims."

J. Hector St. John De Crevecoeur

Birthright Citizenship and the Fourteenth Amendment

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.

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.