14th Amendment

Trump's Unconstitutional Attack on Birthright Citizenship

The president's executive order will violate the text and history of the 14th Amendment.


Gage Skidmore / Flickr.com

In 1868, the U.S. Constitution was formally amended to enshrine the principle of birthright citizenship. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof," declares the 14th Amendment, "are citizens of the United States and of the State wherein they reside."

To say the least, Donald Trump is not a fan of that particular constitutional provision. "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," then-candidate Trump complained in 2015.

President Trump has apparently decided that now is the time to do something about it. "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…with all of those benefits," Trump told Axios yesterday. "It's ridiculous. And it has to end." How does Trump plan to end it? "It's in the process. It'll happen…with an executive order."

There's just one problem with Trump's plan to abolish birthright citizenship via executive order: It would be flatly unconstitutional. Indeed, whether Trump and his supporters like it or not, the text and history of the 14th Amendment are clear: 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.

Start with the text. All immigrants to the United States are "subject to the jurisdiction" of this country while they are within its borders, which is another way of saying that they must obey U.S. law or else face punishment in the U.S. legal system. That is true for both legal and illegal immigrants. Which means that the U.S.-born children of both legal and illegal immigrants clearly qualify for birthright citizenship under the 14th Amendment.

By contrast, the U.S.-born children of foreign ambassadors and ministers do not qualify. That's because their parents have diplomatic immunity and remain subject to the jurisdiction of their home governments. The same thing may be said of invading foreign troops, who are subject to the laws of war. Those are the principal limited exceptions to the 14th Amendment's broad guarantee of birthright citizenship.

So that's the text. What about the history?

The 14th Amendment was introduced and debated in Congress in 1866. The first senator to speak out in opposition to its birthright citizenship guarantee was Edgar Cowan, a Republican from Pennsylvania. "Is the child of a Gypsy born in Pennsylvania a citizen?" Cowan objected. "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?"

Republican Sen. John Conness of California responded. "We are entirely ready to accept the provision proposed in this constitutional amendment," Conness declared, "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 stressed, including the Chinese and the Gypsies, "shall be citizens."

That last point is worth emphasizing. Under the racist terms of the Naturalization Act of 1790, U.S. citizenship was restricted to whites only. That meant that the "Mongolian parents" Conness referred to were not (and could not be) U.S. citizens—yet thanks to the 14th Amendment, "the children born here of Mongolian parents" instantly became U.S. citizens at birth.

Notice that both the supporters and the opponents of the 14th Amendment agreed that it secured birthright citizenship to nearly all U.S.-born children (the primary exceptions being the U.S.-born children of ambassadors and of foreign ministers). The two sides only disagreed about whether or not this sweeping guarantee of birthright citizenship was a good idea to begin with.

In short, the original meaning of the 14th Amendment has been clear since 1866. If Trump proceeds with his unconstitutional executive order attacking birthright citizenship, he deserves to be laughed out of court.

Related: Trump Judicial Nominees Oppose the Trump Administration on Civil Asset Forfeiture and Birthright Citizenship