The President stated recently he is considering signing an Executive Order to end the practice of automatic citizenship granted to children of illegal immigrants born in the United States. Those opposed to this action argue that citizenship for illegal immigrant children is a “birthright” protected by the 14th Amendment. The actual language of the 14th Amendment does not specifically refer to immigrants (legal or illegal). Therefore, understanding the context in which it was written is critical to determining its applicability. The 1st sentence of the Amendment contains the aforementioned “birthright” passage: “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.”
Context:
The 13th, 14th, and 15th Amendments to the Constitution were all adopted in the five-year period following the Civil War (the beginning of the “Reconstruction Era”). They covered a range of additions, corrections, and clarifications to the Constitution that were made necessary by the abolition of slavery. Among the required “clarifications” was a legal dilemma created by the passage of the post war Civil Rights Act of 1866 which stated “…all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States…”. The act specifically defined persons as “…of every race and color, without regard to any previous condition of slavery or involuntary servitude…”. Problematically, the wording of this new law was in direct conflict with prior Supreme Court precedent established in the antebellum Dred Scott case of 1857. In that decision, the court held that a black person “…whose ancestors were imported into [the U.S.], and sold as slaves, whether enslaved or free, could not be an American citizen…”. The only way to resolve this conflict and ensure the language of the Civil Rights Act would survive a constitutional challenge was to amend the Constitution. The first sentence of the 14th Amendment accomplishes this by simply paraphrasing the citizenship statement in the new Civil Rights Act. Once the 14th Amendment was adopted in 1868, it effectively nullified the Dred Scott decision and at the same time legally immunized the 1866 Civil Rights Act from future legal challenges.
Of key significance in the 14th Amendment are the words “…and subject to the jurisdiction thereof…”. The best clue to their intended meaning is how they are correspondingly stated in the 1866 Civil Right Act – “…and not subject to any foreign power…”. At the time of the 14th Amendment, emancipated slaves were clearly under the jurisdiction of the United States and not the defeated confederacy or any other foreign power. Therefore, they themselves and any children born to them would now automatically become US citizens. By way of contrasting example, children of foreign diplomats born on US soil were not US citizens, as the parent is under jurisdiction of a foreign country. This rule still holds today. But what about the case today of an illegal immigrant giving birth on US soil? In 1868 there was no such thing as illegal immigration since existing immigration law only laid out the rules for becoming a US citizen and did not restrict entry. Thus, there were no immigrants who were “illegal” merely by their presence in the United States. The case of an immigrant unlawfully present in the US would never have been considered by the drafters of the 14th Amendment. Had they been prescient about immigration laws to come 100 years hence, it’s possible they would’ve chosen different wording. As it is, a direct application of the words as written in the 14th Amendment would seem to naturally place the jurisdiction of an illegal immigrant under their country of legal citizenship and not the United States. Despite that, ever since the first of the modern-day immigration laws went into effect, creating a class of “unlawful” immigrants, the prevailing assumption has been that these “illegals” are under the jurisdiction of the United States, at least for determining the citizenship of their offspring. Thus, babies born to illegal immigrants on US soil automatically obtain US citizenship.
Stretching the 14th Amendment to apply in this context assumes its original purpose was far more general and all-encompassing than the limited legal circumstance of emancipated slaves and their descendants. Such an interpretation ignores the historical context completely, as if it had no influence on the intended purpose of the Amendment. Common sense says this is highly unlikely.¹
While there have been multiple attempts since the 1990’s to introduce legislation that would affirm the 14th Amendments’ original limited meaning and remove its universal application to children born to illegal immigrants, none have passed.² Also, there have been no legal challenges to the citizenship of illegal immigrant’s children that have reached the Supreme Court in the modern era. Should the President precipitate a challenge via an Executive Order, a legal rebuttal citing the 14th amendment would prove illuminating.
Those who oppose an Executive Order ending automatic citizenship granted to children of illegal immigrants should think carefully how they should proceed if such an order is signed by the President. Knee-jerk legal opposition in the form of a lawsuit, as happened with the “travel ban” Executive Order, ultimately resulted in a Supreme Court decision that upheld key elements of the travel ban, forever setting legal precedent for a President to take such actions. Should a similarly-styled legal challenge arise from a new executive order barring “birthright” citizenship for children of illegal immigrants and make its way to the Supreme Court, the result could be far worse for the opposition than if they had simply done nothing. This is especially true now that the make-up of the court includes five self-described “constitutionalist” justices. Executive Orders by Presidents can be easily reversed by future Presidents. Supreme Court rulings stick unless the Constitution itself is amended.
¹Unfortunately, our history includes numerous examples in which constitutional language is interpreted for political purposes. Often the context is completely unrelated to the purpose for which the language was originally intended. The best example of this comes with the 2nd sentence of the 14th amendment which was applied over 100 years later as the legal centerpiece of the famous Roe v. Wade decision. In that case, the court divined from the wording (which, as mentioned above, was written in the context of the immediate aftermath of the Civil War) that a woman’s right to privacy extended to protecting a decision to have an abortion. Justice Rehnquist wrote in the dissenting opinion at the time “…To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment…”.
²Congresses led by both Democrats and Republicans have authored legislation seeking to accomplish in law the same thing President Trump is contemplating by way of Executive Order. In 1993, Senator Harry Reid (D) introduced legislation that would grant automatic citizenship only to children of US citizens or legally resident aliens. Similar legislation was introduced by Congressman Nathan Deal (R) in 2005, 2007, and 2009. None of these measures garnered enough support for passage.