Aww, Jus
Denying birthright citizenship is the law of the Constitution is just plain Wong.
Sorry it’s been a while since I’ve been able to get anything up. I do this on the side as a hobby. My day job as a lawyer has been… busy. I have irons in the fire, but legal deep dives take time, and some of them have probably expired on their attention span. I promise I haven’t abandoned this thing.
So, one of the very first things that the new Trump administration tried was something that Trump had talked about in his first term in office, and apparently the nativist bit was still in his teeth about: ending “birthright citizenship,” and doing it by executive fiat.
Does this Trump executive order ending birthright citizenship violate the 14th Amendment?
The answer is an unequivocal hell yes it does, and it’s not even close.
(Note: I’d started writing this up a couple days ago and have been sidetracked by three straight brutal days of trials I’ve been stuck in, but I feel somewhat vindicated that a long-tenured Federal judge today had this to say about the government’s argument that it didn’t shortly before slapping a great big INJUNCTION GRANTED stamp on the plaintiff’s request to strike down the order:
Frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind.
This is, uh, not a thing you want a federal judge with 40+ years on the bench to say to you as a lawyer.
The fact that the people pushing this notion that it doesn’t violate the Constitution are also mostly the same folks constantly pushing “textual originalism,” that we must interpret the Constitution as written in 1789, stretches irony to the breaking point.
The Founding Fathers and Early U.S. History
When the Constitution was written, the United States essentially ported over the English common law system, including many of the English decisions and precedent.
A common law system is kind of a weird English quirk that isn’t used in just about anywhere that wasn’t part of the British Empire at one point. The gist of the system is that the law is developed piece by piece, case by case, as judges adjudicate individual disputes before them.1
At the time the Constitution was drafted in 1789, there were two primary legal theories in English common law for how a person obtained the status of being of a particular nation, such as being a subject of a monarch, or a citizen of a popular sovereignty nation.
The first theory is jus soli, or “right of soil.” This means that citizenship is a function of the physical place where a child is born.
There are typically a few exceptions to this, such as diplomats or foreign dignitaries present in a nation where they do not normally reside. Because they are there as foreign envoys, usually with some form of diplomatic immunity, they are not subject to the laws of the country they are temporarily staying in, so their children cannot be compelled to be a part of that country (and therefore owe it allegiance).
The second theory is jus sanguinis, or “right of blood.” This makes citizenship a function of parentage.
If one or both parents are citizens of the nation, then the child inherits citizenship. Countries that follow this sometimes extend it several generations; many European Union countries that follow this model allow automatic citizenship to children of citizens and permissive citizenship upon application out to typically grandchildren and occasionally great-grandchildren.
The English monarchy and common law firmly took the side of jus soli. Anyone other than the children of foreign dignitaries and diplomats born on soil even occupied by the British Empire were subjects of the crown and owed the King fealty.2 In 1608, Calvin’s Case quite clearly established jus soli in all areas claimed by the English Crown.
When the United States was founded and the Constitution written, this was well-entrenched in English common law and the concept was included in American common law as well.
It was taken as such a given that the New York state court decision Lynch v. Clarke in 1844 was somewhat incredulous that it was even being brought up, making entirely clear that jus soli citizenship is the law of the land, even where a child was born to immigrant parents and subsequently left the United States never to return.3
Post-Civil War South
In 1868, when the 14th Amendment was drafted, the Civil War had just ended and Reconstruction was beginning. The Southern states were still being excluded from congressional representation.
First, it’s important to note that the infamous Supreme Court decision in Dred Scott v. Sanford had not yet been overruled. Dred Scott held that black people, even freed blacks, could not ever be citizens of the United States. They could not be naturalized. They could not inherit citizenship. They were, in Roger Taney’s opinion, forever excluded by the Framers of the Constitution.
There was also the matter of the decision in Barron v. Baltimore that stated that the Federal Constitution did not apply to the individual States except where expressly stated. Because of these two decisions, the individual States were quite free to abridge free speech, free press, perform searches on homes without restriction, and didn’t owe folks any due process under the federal Constitution. While the States often enshrined at least some if not all of these rights in their individual state Constitutions, not all did, and your rights could vary wildly if you crossed the border between them.
After the Civil War and the passage of the 13th Amendment which (mostly) ended slavery, Southern states immediately moved to adopt “black codes” that severely restricted the rights of the newly freed blacks as much as possible. White Southerners passed laws restricting the rights of blacks to own real or personal property, to form contracts (meaning whites couldn’t be bound to contracts entered into with blacks,) and instituting severely harsher criminal penalties - essentially jaywalking could get you a death sentence.
These “black codes” were justified under the theory that blacks were not citizens either of the individual States nor of the United States, and therefore entitled to no rights under the either the federal or various state-level constitutions.
Essentially, the former Confederate states were attempting to go back to some form of slavery, or at the very least end up doing a lot of racial discriminating, by essentially stripping people of their state citizenship.
If jus sanguinis citizenship was the law, that meant that even if Dred Scott were ever overturned, no black child would ever be a citizen by birth and would have to apply to be naturalized, which Congress could prohibit, and if the former Confederate states were allowed to keep state citizenship separate from federal citizenship, they could continue to essentially recreate slavery in all but name, since the Federal Constitution wasn’t applicable to the States unless it specifically stated it did (which the Bill of Rights does not).4
In response, the northern Republican-controlled Congress passed the Civil Rights Act of 1866, which would have granted full citizenship to all former slaves and essentially to all people currently in the United States (except untaxed Native Americans).5
The Southern states fought it bitterly, contesting the constitutional basis of its passage. President Andrew Johnson agreed, and vetoed the bill.6
The Fourteenth Amendment
Enraged by Johnson’s veto, Congressional Republicans drafted the Fourteenth Amendment, and in particular the Equal Protection and Due Process Clauses, both of which are expressly targeted at the individual States themselves.
This also included the Citizenship Clause.
Congressional Republicans required ratification of this amendment as part of the Southern re-admittance into congressional representation.
This amendment guaranteed jus soli citizenship to everyone in the United States by virtue of having been born here as a means of overruling Dred Scott, and making United States citizenship primary and state citizenship derivative of United States citizenship, so that Southern states couldn’t continue these “black codes” on the justification of those people not being citizens of the state or the US to deny people their rights under the Constitution.
Senator Jacob Howard from Michigan was the one who introduced the Fourteenth Amendment in the Senate.
Various people who are trying to claim that Senator Howard’s introductory speech for the Citizenship Clause actually goes against birthright citizenship point to this part:
This 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.
However, these people make two key mistakes here.
First, they tend to omit Senator Howard’s paragraph immediately preceding that quote:
I do not propose to say anything on the subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation. This amendment which I have offered is 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.
The question of citizenship had been, according to Senator Howard, completely agreed upon to the point where it was silly to say anything about it, and the understanding of the law of citizenship by birth in the nation at the time was, again, jus soli. Senator Howard’s remarks are “I shouldn’t have to even say this, but this is just codifying what we’ve always done, mmmkay guys?”
And second, people tend to insert an and in there that isn’t actually there and read it as “foreigners, aliens, and who belong to the families of ambassadors or foreign ministers…” There’s no and there.
Senator Howard was speaking not of three distinct groups. He was speaking of one distinct group: the children of foreign dignitaries. This was, again, a very well recognized exception to jus soli.
This somewhat stilted language with pauses and repetitions of the same concept was how people talked and wrote at the time. Read some Twain, you’ll get a feel for it.
Cases Interpreting the Citizenship Clause of the Fourteenth Amendment
In the Slaughterhouse Cases of 1873, the U.S. Supreme Court mentioned in dicta that “children of ministers, consuls, and citizens or subjects of foreign States born within the United States” would not be subject to the 14th Amendment’s citizenship clause, again referencing the long-understood common law exceptions to jus soli, not of jus sanguinis. If the clause had referred to jus sanguinis, it wouldn’t matter if they were born on US soil, because their citizenship would derive from their parentage, not their place of birth, and it would have been silly to even put it in dicta.
Shortly thereafter, Elk v. Wilkins, 112 U.S. 94 (1884) held that Native Americans were not eligible for jus soli citizenship by virtue of the unique and special relationship of Native American tribes to the United States Federal Government.7 This was later overruled by statute with the Indian Citizenship Act of 1924, though U.S. citizenship had been slowly started to be extended to Native Americans in the late 19th century and through the early 20th century before it.
SCOTUS Says Jus Sanguinis is Just Plain Wong
The most definitive court case on the subject is United States v. Wong Kim Ark, 169 U.S. 649 (1898). In Wong Kim Ark, the Supreme Court held that a person who isn’t the child of diplomats is considered subject to the jurisdiction of the United States and therefore a citizen of the United States by birth under the 14th Amendment.
The lawful or unlawful immigration status of the parents was not the issue that Wong Kim Ark turned on. In fact, it was precisely whether to adopt a view of whether parentage was even something to consider that was central to the case.
The case specifically turned on whether the meaning of “subject to the jurisdiction thereof” in the Citizenship Clause of the Fourteenth Amendment referred specifically to the concept of jus sanguinis or whether it referred more broadly to the longstanding concept of jus soli.
Ultimately, the Supreme Court ruled 6–2 that jus soli was the longstanding tradition of the United States and was the intent of the drafters of the Fourteenth Amendment. Justice Gray wrote a lengthy opinion that covered the history of citizenship in the United States and Western civilization to come to that conclusion.
This case still controls today.
Some conservative commentators have suggested that Wong Kim Ark does not control today because the parents were legal immigrants; their argument being that Trump’s executive order would only apply to children of illegal immigrants.
This likewise holds no merit whatsoever.
First, at the time the Fourteenth Amendment was drafted and when Wong Kim Ark was decided, the concept of a lawful permanent resident as we understand it today was significantly different. There were relatively few immigration laws and they mostly regarded to what kinds of ethnic groups and nationalities the United States wanted to stick a big “KEEP OUT” sign up about.
Second, the plain text of the Fourteenth Amendment reads “all persons born in the United States,” not “all children of lawful permanent residents born in the United States.” This is unambiguous.
“Subject to the jurisdiction thereof”
Some conservative legal scholars, and now the apparent position of Trump’s Department of Justice, have tried to argue that immigrants here without lawful status are not “subject to the jurisdiction thereof.”
This is patently absurd on its face, however.
If they weren’t subject to the jurisdiction of the United States, we couldn’t prosecute them or otherwise hold them accountable under US law! This is precisely why the children of foreign dignitaries and ambassadors have immunity: they aren’t subject to the jurisdiction of the United States! (This is where diplomatic immunity comes from!)8
Courts have never held that immigrants - legal or otherwise - are somehow immune from the jurisdiction of the United States. In fact, the Supreme Court has held repeatedly that the Constitution guarantees certain rights even to immigrants, regardless of their legal status, while they are in US territory!
The Supreme Court ruled that the 14th Amendment’s other important clauses, the Equal Protection Clause and Due Process Clause, do apply to immigrants regardless of their legal status in Plyler v. Doe, 457 U.S. 202 (1982), because of the question of jurisdiction. Specifically, the Plyler Court said this:
No plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful.
This is just unambiguous right here!
Even the dissenting opinions adopted this specific principle when they disagreed with what the outcome of the case should be. There was no question that these people were in some fashion subject to the jurisdiction of the United States!
The Heritage Foundation
It was nearly a century after Wong Kim Ark was decided that conservative think tanks such as the Heritage Foundation began peddling the narrative that jus sanguinis was really what the drafters of the Constitution and the Fourteenth Amendment had in mind, despite all legislative history and debate to the contrary. In the 1990’s, various conservatives, generally on the fringes of the Republican Party (ironically, the same party that drafted the Fourteenth Amendment in the first place 125 years prior) started to question whether Wong Kim Ark was correctly decided amidst the debate over undocumented immigration.
This was where the concept of “anchor babies” and other pejorative terms for children born in the United States to immigrants present without lawful status started to come in.
This fringe movement gained some steam in recent years among various conservative circles and is now popular among the nativist MAGA crowd, but the vast majority of non-partisan legal scholarship (and certainly all credible legal scholarship) agrees that Wong Kim Ark was correctly decided, and that it clearly adopts the view that jus soli was always a part of the American system of citizenship and explicitly codified in the Constitution under the Fourteenth Amendment.
Are we the only jus soli country in the world?
Trump has been fond of claiming that the US is the only country in the world with this kind of citizenship. This is just patently false.
As anyone can plainly see here, most of North and South America, as well as several other nations of the world follow the United States on this form of birthright citizenship.
It’s not only a lie, it’s a dumb lie!
But the Birth Tourists!
Another common complaint right now is the idea that people will somehow plan a vacation around their due date so that they can drop a kid in the United States and that kid is now a citizen, and step 2, ??? step 3, profit!9
These arguments are also patently silly on their face, and if anything, this benefits the United States!
The US is one of only a handful of countries that taxes its citizens on their income even if they reside outside the US and even if their income is made outside the US! That’s right: if you’re a US citizen and you live in Germany and work there, you are supposed to be paying taxes on what you make there! Some poor kid who had the misfortune of getting born on a family vacation to DC to some tourists from Vienna has US citizenship, but that also means in a couple decades, Uncle Sam’s gonna want his cut!
Bottom Line
Unless the Supreme Court overturns Wong Kim Ark as well as a whole host of cases regarding the application of the Constitution to immigrants such as Plyler v. Doe, which there is little reason to believe it actually will outside of the conservative-leaning judges acting in lockstep with a particular specifically partisan agenda, Trump’s threatened executive order is nothing more than a blatant attempt to amend the Constitution by executive fiat.
Whoever has advised Trump that this is possible shows a complete lack of regard for more than 225 years (if not more than 400 years!) of legal and legislative history, jurisprudence and legal scholarship on the matter in the United States.
Standard addendum: I anticipate this will start to bring out a certain segment of the population.
I welcome rational, reasoned debate on the merits with reliable, credible sources.
But coming on here and calling me names, pissing and moaning about how biased I am, etcetera and so forth, will result in a swift one-way frogmarch out the airlock. Essentially, act like an adult and don’t be a dick about it.
Eventually, the English added a legislature that passed laws in addition to the judge-made law, and the monarchy also made laws by decree.
And tax revenue.
Lynche involved the inheritance of a successful business. Thomas Lynche was an Irish citizen who co-owned a mineral spring with a guy named John Clarke. Lynche was never a US citizen, but his brother Patrick had a daughter who was born in New York City during a family visit in 1819, named Julia. Julia went back to Ireland with the family as an infant and had no connection to the US whatsoever other than being born in New York City. Upon Thomas’ death in 1833, Clarke claimed in probate court that he should be entitled to some jointly owned real estate that he and Thomas had because the only heirs to Thomas’ side of the business were not US citizens, as the law of New York barred non-citizens from inheriting land in the state. The judge was utterly baffled by Clarke’s argument that Julia wasn’t a citizen, having been born in the US, despite having literally no other connection to it:
I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.
This was more than two decades before the Fourteenth Amendment!
Someday I’ll get around to discussing the idea of incorporation of the Amendments to the states, fundamental rights, and substantive due process. It’s gonna be a hoot. I promise.
The untaxed part was really actually kind of important. Remember, part of the Revolution was the whole “no representation without taxation!” piece. If indigenous tribes paid taxes, they would have been entitled to representation in state and federal legislatures… something the white guys who were currently slaughtering those indigenous tribes on their way to expanding the country westward were, ah, not excited about. By excluding them specifically as “not taxed,” they could continue to justify not giving them their own congresscritters.
It was later passed again as part of a package with the 13th Amendment, vetoed again by Johnson, and then his veto was overruled by Congress.
Again, that “special relationship” being largely that we wanted their land, they didn’t want to give it up, and we didn’t want them to have representation in Congress over the matter.
We can expel diplomats, but pretty much all we can do is just tell their home country to go pick ‘em up at the embassy because they aren’t welcome here anymore. But we can’t give them so much as a parking ticket.
Never mind the horrific state of the American medical system right now or the physical difficulties and restrictions on traveling while heavily pregnant.