President Donald Trump will win many court cases defending the executive orders from his first week, but the one ending birthright citizenship won’t be one of them. He is going to lose that case, and he will lose it badly, which is a shame because birthright citizenship is, at best, a distraction in the implementation of an effective immigration system, and its absence would undermine the possibility of agreement on other, more necessary reforms.
Section One of the 14th Amendment, ratified in 1868, begins, “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.”
From America’s founding in 1776 to the Dred Scott v. Sandford decision in 1857, it had been the common law understanding, first in Britain, then in the colonies, and then in the United States, that all people born in the United States, with a few exceptions, were U.S. citizens. This was the jus soli understanding of citizenship (citizenship defined by birthplace) adopted from the British, not the continental Europe jus sanguinis (citizenship defined by blood, that is, by the citizenship of parents).
Dred Scott temporarily changed the common law consensus, holding that slaves born in the U.S. were not citizens. The U.S. fought the Civil War over this issue. The federal government won, and in 1866, the Senate began deliberations on an amendment to overrule the Supreme Court’s decision in Dred Scott.
The first draft of the 14th Amendment submitted to Congress did not contain the “citizenship” clause. The language we have today was proposed by Sen. Jacob Howard, who wanted to add a clause “simply declaratory 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.”
“This will not, of course,” Howard continued, “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.”
People who want to end birthright citizenship have latched on to the “or” in this second sentence to make the case that “foreigners” and “aliens” were always intended to be left out of the 14th Amendment. But that is not how senators both for and against granting citizenship to the children of “foreigners” and “aliens” understood the language at the time.
Sen. Edgar Cowan objected to Howard’s amendment because he believed the language would allow “the child of the Chinese immigrant in California” and “the child of a Gypsy born in Pennsylvania” to be citizens at birth. Sen. John Conness, himself a naturalized citizen of Irish birth, rose to affirm Cowan’s reading of Howard’s language but also to defend the underlying policy.
“The proposition before us,” Conness said on the Senate floor, “relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. … I am in favor of doing so. … We are entirely to accept the provision proposed in this constitutional amendment, 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 with others.”
With the meaning of the 14th Amendment firmly established, that it would apply to the children of immigrants from anywhere in the world, Howard and Conness voted for the language we have today. Cowan voted against it.
It is true that the language includes an additional qualifier, “and subject to the jurisdiction thereof,” but this does not exclude aliens. This language was added to distinguish three distinct groups that would not be entitled to birthright citizenship: the children of ambassadors and agents of a foreign power, troops in an invading army, and Native Americans, who, at the time, were not citizens of the U.S. and were under tribal jurisdiction.
All Native Americans, including those born in the U.S., were later granted citizenship by the 1924 Indian Citizenship Act, but at the time of the 14th Amendment’s drafting, “and subject to the jurisdiction thereof” was clearly designed to exclude them.
That the 14th Amendment granted birthright citizenship to the children of immigrants was confirmed by the Supreme Court in United States v. Wong Kim Ark, 30 years after the amendment’s ratification. Wong Kim Ark was born in San Francisco in 1873 to Chinese parents who were, at all times, “subjects of the Emperor of China.” While Wong Kim Ark’s parents were Chinese citizens, the Supreme Court noted that they “were never engaged in any diplomatic or official capacity under the Emperor of China.” Wong Kim Ark’s parents eventually returned to China permanently in 1890.
In 1894, four years after his parents permanently left the U.S., Wong Kim Ark visited China, and when he returned in 1895, he was denied entry on the grounds that he was not a U.S. citizen and his entry into the country was banned under the 1882 Chinese Exclusion Act. Wong Kim Ark sued for admission, claiming that the 14th Amendment conferred U.S. citizenship on him, and he won.
“The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory,” the majority opinion by Justice Horace Gray reads, “in the allegiance and under the protection of the country, 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.”
Trump’s Protecting the Meaning and Value of American Citizenship executive order directly contradicts the plain meaning of the 14th Amendment and the Supreme Court’s holding in Wong Kim Ark. The order attempts to deny birthright citizenship not only to those whose parents are “unlawfully present in the United States” but also those whose parents are “lawful but temporary,” which precisely describes Wong Kim Ark’s parents, who were subjects of the emperor of China and were only temporarily in the U.S.
Setting aside the legality of Trump’s executive order, ending birthright citizenship will not solve the immigration crisis. Look at this chart below, which shows the percentage of foreign-born people in the U.S. now and in 1850.
The chart shows that the percentage of foreign-born residents was growing rapidly before the Civil War and the 14th Amendment. It peaked at about 14.8% in 1890, a year before President Benjamin Harrison signed the Immigration Act of 1891, which first made it a crime to bring people into the country illegally. This law, with the 1882 Immigration Act and the Chinese Exclusion Act, made it much harder for immigrants to enter the U.S.
The foreign-born population then fell to 4.7% by 1970. Throughout the intervening decades, birthright citizenship was in full effect, and immigration was under control.
But in 1965, Congress passed the Hart-Celler Act, which fundamentally altered the immigration system. It abolished national origin caps and shifted the criteria for granting visa admission from skills to family relationships. Unmarried sons and daughters of U.S. citizens, spouses and children of permanent residents, and brothers and sisters of U.S. citizens were all put at the front of the visa line.
Sen. Ted Kennedy, who was a key sponsor of the law, promised, “This bill will not flood our cities with immigrants. It will not upset the ethnic mix of our society. It will not relax the standards of admission. It will not cause American workers to lose their jobs.”
Every word was, characteristically of the senator, a lie. The 1965 Immigration Act flooded cities with immigrants. It upset the ethnic mix of our society. The educational level of immigrants has collapsed, as have the wages of low-skill American workers who must compete with the immigrants for whom Kennedy deceptively opened the gates of the nation.
What the 1965 act did not do was change birthright citizenship. Birthright citizenship was the policy before immigration fell after 1890, it was the policy while immigration fell between 1890 and 1965, and it was the policy after 1965.
Birthright citizenship is not the problem. The problem is the 1965 Immigration Act.
Trump and others who want to end birthright citizenship are right when they say it is a “magnet for illegal immigration.” But as the chart shows, it is not the determining factor.
Almost all immigrants, legal and illegal, come to the U.S. because they know they can make more money here than in their home countries. Let us hope that is always the case.
The danger of ending birthright citizenship is that it would allow those who want cheap immigrant labor to downplay the true costs of bringing in so-called temporary workers. Sen. Lindsey Graham (R-SC), for example, has long been a proponent of ending birthright citizenship and expanding guest worker programs.
Graham and big-business Republicans like him want to exploit migrants for cheap labor, thus lowering American wages while also treating them like robots, essentially denying them their humanity. As many nations have found, temporary workers are rarely temporary. Most want to stay past their allotted times and end up forming families in their adoptive countries.
The answer is not to make temporary workers second-class residents by denying their children birthright citizenship but to end “temporary” worker programs altogether because they harm American workers. That should be the focus of conservative immigration reform.
To the extent we allow immigrants in, we should expect them to stay permanently and push them to assimilate quickly. By ensuring that an immigrant’s child will automatically be tied to our country through citizenship, birthright citizenship helps do that.
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Overall, Trump has led the Republican Party and the nation along the right path on immigration reform. The push for mass amnesties under former Presidents George Bush and Barack Obama is a thing of the past. Illegal immigrants are being returned to Mexico instead of being paroled into the country. Former President Joe Biden’s illegal flights carrying migrants from Cuba, Haiti, Nicaragua, and Venezuela have ended. Criminal immigrants, such as Laken Riley’s killer, Jose Ibarra, are being rounded up and deported. Workplace enforcement raids will begin soon, one hopes, forcing employers to stop hiring migrants without work authorization.
These measures will stop more illegal immigrants from entering the country, force thousands more to be deported, and convince millions to self-deport. All of this can be accomplished without a drawn-out battle for a new constitutional amendment or a futile court fight that would blur a clear, bright-line rule that has ably served our country since its founding.