Lets Be Honest About Birthright Citizenship
The recent Supreme Court decision in Trump v. CASA, Inc. fell short of clarifying the matter of birthright citizenship. It limited the ability of lower courts to issue nationwide injunctions against executive orders. While the Court did not rule on the constitutionality of birthright citizenship itself, the decision allows the Trump administration’s executive order, which seeks to restrict birthright citizenship for children of undocumented immigrants, to be enforced in some states, where the order is not blocked by a court. Because it didn’t clearly state whether or not U.S. citizenship should be granted automatically to all children regardless of the immigration status of the mother or father, both sides of this complicated issue have contorted what the Court did say into support for their side of the argument. This is intellectually dishonest, of course, but so is much of today’s political and Constitutional debate. Let’s try to do better.
Birthright citizenship in the United States is primarily guaranteed by the Citizenship Clause of the Fourteenth Amendment to the Constitution, adopted in 1868. It was enacted primarily to settle the matter of citizenship of newly freed slaves and their children. Its primary clause states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens”. This means that anyone born within U.S. territory, with a narrow exception regarding jurisdiction, is automatically a citizen. No mention is made of the parents’ citizenship or immigration status. The relevance of the parents’ citizenship status was settled 30 years later, in 1898, in another Supreme Court case, Wong Kim Ark. This is known as jus soli (right of the soil). Additionally, citizenship can also be obtained through jus sanguinis (right of blood), meaning a child born outside the U.S. can be a citizen if at least one parent is a U.S. citizen.
The Citizenship Clause has been more broadly interpreted by many scholars and courts than the actual language of the Amendment permits. The amendment is silent on the citizenship or immigration status of the parents. The Wong Kim Ark case clarified that birthright citizenship applies to all persons born within the U.S., regardless of the parents citizenship status, again with limited exceptions. It was silent on the matter of the parents’ immigration status. There is a very simple reason why both the 14th Amendment and the 1898 Wong Kim Ark clarification did not mention immigration status: when the 14th Amendment was written, there were no immigration laws, so there were no illegal immigrants, or, if you prefer, undocumented immigrants. Even by 1898, there was no comprehensive immigration law. It wasn’t until the Immigration Act of 1924 that the concept of illegal immigration was introduced.
The question before us in 2025 is whether a child born to parents who are illegally present in the United States should be granted citizenship. That is not a question that can be answered by either the text of the 14th Amendment or the Wong Kim Ark Supreme Court decision. It is simply not addressed in either one.
Conservative analysis of the Constitution is typically called textualist or originalist. That means that the Constitution means what it meant when it or amendments to it were written. The original intent of the 14th Amendment was to give citizenship to former slaves and their children. The Wong Kim Ark decision held that the children of U.S. citizens are automatically citizens themselves at birth, even if the parents were in a class later excluded from admission into the United States. To argue beyond those two points requires extrapolation. It is therefore a perfect matter to be settled by the Supreme Court.
My opinion is contending that citizenship in this country should be granted to children of persons illegally present in this country is a stretch.
There’s a secondary issue that has come up in recent years, and that is so-called “birth tourism,” when a pregnant woman of a different nationality comes to the US to give birth to a child here so that the child is a U.S. citizen. That’s where the clause in the 14th Amendment about being “subject to the jurisdiction thereof” applies, and some clarification of it is probably needed, but it does not apply to the debate about the children of parents illegally present in our nation. They can become citizens only through naturalization, and that is a process, not a birthright.
(Colin Hanna is President of Let Freedom Ring, USA.)
