Trump's Case Against Birthright Citizenship Is a Constitutional Loser

The text and history of the Fourteenth Amendment run counter to Trump’s executive order.

President Donald Trump's executive order purporting to abolish birthright citizenship for millions of U.S.-born children is an insult to the text, history, and original public meaning of the Fourteenth Amendment. On May 15, the U.S. Supreme Court will hear oral arguments in a consolidated case arising from this pernicious presidential decree. So long as the Supreme Court's self-professed "originalists" practice what they preach, the case will be a well-deserved defeat for Trump.

Drafted in 1866 and ratified in 1868, the Fourteenth Amendment declares in its first section 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."

The current legal debate over birthright citizenship centers on the meaning of the phrase "subject to the jurisdiction." So, what does it mean?

According to Trump, a child who is born in the United States, but whose "mother was unlawfully present" and whose "father was not a United States citizen or lawful permanent resident," is not subject to U.S. jurisdiction and is therefore ineligible for birthright citizenship. Likewise, according to Trump, a child who is born in the U.S. but whose "mother's presence in the United States at the time of said person's birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa)," and whose "father was not a United States citizen or lawful permanent resident," is also ineligible.

But illegal immigrants and temporary lawful visitors are "subject to the jurisdiction" of the United States as that phrase was originally understood when the Fourteenth Amendment was adopted.

To understand why, let's start with the text, as originally understood circa 1866-1868. The 1865 edition of Noah Webster's popular An American Dictionary of the English Language defined "jurisdiction," when applied to a government, as meaning the "power of governing or legislating," "the right of making or enforcing laws," and "the power or right of exercising authority." In other words, to be "subject to the jurisdiction" of the United States meant to be subject to U.S. law and authority. It meant that a person must follow U.S. law or else face punishment in the U.S. legal system.

And guess who must follow U.S. law or else face punishment in the U.S. legal system? Illegal immigrants and lawful temporary visitors.

This meaning of "jurisdiction" was already well-established in U.S. case law at the time of the Fourteenth Amendment's adoption. Consider Chief Justice John Marshall's 1812 opinion in Schooner Exchange v. McFadden. "When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other," Marshall wrote, "it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country." Put differently, when foreigners are present on U.S. soil, they are subject to the jurisdiction of the U.S.

The congressional debates over the Fourteenth Amendment provide additional evidence in support of this original understanding. Sen. Jacob Howard (R–Mich.), for example, shepherded the amendment to passage as its floor manager in the Senate. As Howard explained in a widely reprinted 1866 speech, while birthright citizenship would not extend to "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," those eligible for birthright citizenship "will include every other class of persons."

As you can see, Howard specified two classes of U.S.-born children who are ineligible for birthright citizenship: those whose parents are "ambassadors" and those whose parents are "foreign ministers." What makes those two sets of parents different? The answer is simple: Ambassadors and foreign ministers have diplomatic immunity and are thus not "subject to the jurisdiction" of the United States. The U.S-born children of invading foreign troops are likewise excluded from birthright citizenship under this original understanding, since foreign troops are subject to the laws of war, not to the laws of whatever country they are fighting in.

"Every other class" of U.S.-born children, however, is eligible for birthright citizenship, including the children of permanent resident aliens, of temporary visiting aliens, and of illegal aliens. Why? Because those classes of aliens are subject to U.S. jurisdiction. They all must follow U.S. law or else face punishment in the U.S. legal system.

Even the congressional opponents of the Fourteenth Amendment shared this original understanding of birthright citizenship. Sen. Edgar Cowen (R–Pa.), for example, demanded to know if "the child of a Gypsy born in Pennsylvania" would be a citizen. "Is it proposed that the people of California are to remain quiescent," Cowen squealed, "while they are overrun by a flood of immigration of the Mongol race?"

Cowen understood that the U.S.-born children of unpopular immigrants would become citizens if the Fourteenth Amendment was passed. Indeed, that understanding was a key reason why Cowen opposed the amendment in the first place. Needless to say, when both sides of such a dispute agree on the meaning of a constitutional provision, that real-time agreement provides valuable historical evidence about the provision's original meaning.

So, contra Trump, the text and history of the Fourteenth Amendment are clear: If a child is born on U.S. soil, and that child's parents are not diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen at birth.

There are several justices now sitting on the Supreme Court who claim to care about the original meaning of the Constitution. If those justices are serious, they will treat Trump's case against birthright citizenship as the constitutional loser that it is.