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!’”

The 28th Amendment!

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Today, Virginia became the 38th state to ratify the Equal Rights Amendment, a proposed amendment to the Constitution of the United states designed to guarantee equal rights for all American citizens regardless of sex.

The text of the Equal Rights Amendment states:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.  

I've been watching this for some time, as it was just last year that Illinois became the 37th state to ratify the proposed amendment.

For a proposed amendment to become a part of the Constitution, one method is for it to be ratified by three-fourths of the states.  Or thirty-eight states.

The Equal Rights Amendment has had a torturous path toward those thirty-eight ratifications.  Thirty five of them ratified within the original deadlines.  Nevada, Illinois, and Virginia have only ratified in the last three years.

Here, though, is where things get even more interesting.  First, the Amendment initially came with a built-in deadline for ratification, initially March 22, 1979 and extended to June 30, 1982.  That deadline has obviously passed without the requisite ratifications, so there is some thought that even with another state ratifying, the Amendment would not go into effect.  The Supreme Court, in Coleman v. Miller, 307 U.S. 433 (1939), has ruled that the supreme authority to determine whether, by a lapse of time, a proposed amendment lost its vitality before being ratified lies in Congress.  Put another way, the decision regarding whether the deadline is controlling is in Congress' hands.  And there have been several proposals on the floor over the years to revive the Equal Rights Amendment and to remove the deadline.  It's also important to note that the deadline was passed in a separate message, not included in the proposed amendment itself.  Given those circumstances, the deadline itself may not even be constitutional.

Secondly, four or five states that initially ratified the Amendment have rescinded their ratification (with South Dakota's being most questionable).  The Constitution is silent on whether or not a ratification can in fact be rescinded.  And while the Supreme Court has heard arguments on the validity of a rescinding, it has not ruled directly on their validity.  The issue in NOW v. Idaho, 459 U.S. 809 (1982), was decided on procedural grounds.

It presents a very interesting situation. With Virginia ratifying, the amendment arguably should be the Twenty-Eighth Amendment to the United States Constitution.  It will result in much debate and political maneuvering to achieve such a result.  There will be constitutionality cases, there will be great political theater.  Likely, you will see those that support it act like it automatically becomes a part of the Constitution and those that oppose it pretend it does not.  It will be fascinating to watch.

The 28th Amendment?

On May 30, 2018, Illinois became the thirty-seventh state to ratify the Equal Rights Amendment, a proposed amendment to the Constitution of the United states designed to guarantee equal rights for all American citizens regardless of sex.

The text of the Equal Rights Amendment states:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.  

For a proposed amendment to become a part of the Constitution, one method is for it to be ratified by three-fourths of the states.  Or thirty-eight states.  It would seem that if and when one more state ratifies the Equal Rights Amendment, it becomes the Twenty-Eighth Amendment to the United States Constitution.

Here, though, is where things get interesting.  First, the Amendment initially came with a built-in deadline for ratification, initially March 22, 1979 and extended to June 30, 1982.  That deadline has obviously passed without the requisite ratifications, so there is some thought that even with another state ratifying, the Amendment would not go into effect.  The Supreme Court, in Coleman v. Miller, 307 U.S. 433 (1939), has ruled that the supreme authority to determine whether, by a lapse of time, a proposed amendment lost its vitality before being ratified lies in Congress.  Put another way, the decision regarding whether the deadline is controlling is in Congress' hands.  And there have been several proposals on the floor over the years to revive the Equal Rights Amendment and to remove the deadline.  It's also important to note that the deadline was passed in a separate message, not included in the proposed amendment itself.  Given those circumstances, the deadline itself may not even be constitutional.

Secondly, four or five states that initially ratified the Amendment have rescinded their ratification (with South Dakota's being most questionable).  The Constitution is silent on whether or not a ratification can in fact be rescinded.  And while the Supreme Court has heard arguments on the validity of a rescinding, it has not ruled directly on their validity.  The issue in NOW v. Idaho, 459 U.S. 809 (1982), was decided on procedural grounds.

It presents a very interesting situation. Should another state ratify the Amendment, it arguably should be the Twenty-Eighth Amendment to the United States Constitution.  It will result in much debate and political maneuvering to achieve such a result.  There will be constitutionality cases, there will be great political theater.  Likely, you will see those that support it act like it automatically becomes a part of the Constitution and those that oppose it pretend it does not.  It will be fascinating to watch.

Something to keep an eye on.