The GOP's Unconstitutional Attack on Birthright Citizenship

Why Donald Trump is wrong about the text and history of the 14th Amendment.


Credit: Todd Kranin

Attacks on birthright citizenship are back in the news. At last week's GOP presidential debate, Republican frontrunner Donald Trump led the charge in favor of eliminating the practice. "A woman gets pregnant. She's nine months, she walks across the border, she has the baby in the United States, and we take care of the baby for 85 years. I don't think so," Trump declared. "I believe that a reading of the 14th Amendment allows you to have an interpretation where [birthright citizenship] is not legal and where it can't be done."

Donald Trump is free to believe whatever nonsense he wants. But that belief cannot change the text and history of the 14th Amendment. And make no mistake, the text and history of the 14th Amendment are clear on this point: If a child is born on U.S. soil, and that child's parents don't happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth.

Let's start with the text. The Citizenship Clause of the 14th Amendment says, "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." The primary author of those words was Republican Senator Jacob Howard of Michigan. "This amendment I have offered," Howard told the Senate on May 30, 1866, "is simply declarative of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States."

What does it mean to be "subject to the jurisdiction" of the United States? Howard supplied an answer. The Citizenship Clause, he explained on the Senate floor, "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

Notice that Howard specified two types of aliens whose U.S.-born children would not qualify for birthright citizenship, "ambassadors" and "foreign ministers." What makes ambassadors and foreign ministers different from other aliens present on U.S. soil? Simple: Ambassadors and foreign ministers have diplomatic immunity and are therefore not "subject to the jurisdiction" of the United States. Instead they remain subject to the jurisdiction of their home governments. By contrast, "every other class" of aliens, including permanent resident aliens, temporary resident aliens, and illegal aliens, is subject to U.S. jurisdiction, which is another way of saying that those aliens must obey U.S. laws or else face punishment in the U.S. legal system. Thus, according to Sen. Howard, the vast majority of U.S.-born children qualify for automatic birthright citizenship. The only exceptions are the U.S.-born children of diplomats, foreign ministers, and, we might add, invading foreign troops, who are subject to the laws of war, not to the laws of the particular nations that they're fighting.

This understanding of the Citizenship Clause is amply supported by the debates surrounding the passage and ratification of the 14th Amendment.

For example, the first senator to rise in opposition to Howard's citizenship proposal was Edgar Cowan of Pennsylvania, a conservative Republican who ultimately voted against the amendment. "Is the child of a Gypsy born in Pennsylvania a citizen?" Cowan fretted. "Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?"

Cowan's concerns were promptly addressed by Republican Sen. John Conness of California. "We are entirely ready to accept the provision proposed in this constitutional amendment," Conness responded, "that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law." Even the children of unpopular immigrants, Conness made clear, including the Chinese and the Gypsies, "shall be citizens."

In short, both the supporters and the opponents of the 14th Amendment understood it to secure birthright citizenship to all but an extremely narrow group of U.S.-born children. The two sides only disagreed about whether this broad grant of birthright citizenship was a good idea to begin with. The original meaning of the Citizenship Clause went unchallenged.

Three decades later, the U.S. Supreme Court gave its stamp of approval to this original understanding in United States v. Wong Kim Ark (1898), in which the Court affirmed the U.S. citizenship of a man born to non-citizen Chinese parents in San Francisco. The case arose after the man temporarily left the U.S. in order to visit China and was nearly denied reentry due to the xenophobic Chinese Exclusion Act.

"The Fourteenth Amendment," the Court observed in Wong Kim Ark, "affirms the ancient and fundamental rule of citizenship by birth within the territory, 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." That original understanding has held sway in American law ever since, and rightfully so.

Most Republicans today claim to revere the text of the Constitution. If that's truly the case, they will reject Donald Trump's ill-informed and unconstitutional attack on the 14th Amendment.