The Constitution and Birthright Citizenship
Birthright citizenship is a hallowed tradition in the United States. It is what transformed this country from a collection of immigrants into contributors to a shared democratic project. U.S. courts have long recognized this principle. The shameful exception was the exclusion of African Americans. In 1857, Dred Scott v. Sanford held that the nation’s embrace of slavery meant even free Black people could never be citizens.
Dred Scott was one of many steps leading to the Civil War, and the Reconstruction Congress quickly rejected it. First, the 1866 Civil Rights Act reinstated birthright citizenship over President Andrew Johnson’s veto. Next, the 14th Amendment enshrined it in the Constitution, declaring that everyone “born ... in the United States, and subject to the jurisdiction thereof” is a U.S. citizen.
Birthright citizenship has been challenged before. In 1898, United States v. Wong Kim Ark held, in a time of vicious racist attacks on Chinese, that U.S.-born children of Chinese immigrants were indeed birthright citizens under the Constitution. In the 1990s, another wave of anti-immigrant sentiment led to bills limiting birthright citizenship to children of legal immigrants. But the U.S. Office of Legal Counsel opined that any such attempt would be unconstitutional, and the bills went nowhere. Now President Trump seeks to end this constitutional principle without even going through Congress.
The Trump Administration’s Flawed Indian Law Defense
In response to legal challenges to the executive order, Trump administration lawyers argue that children of people temporarily or illegally in the United States are somehow not subject to its jurisdiction as the Constitution says. They rest this argument in part on a claim that Native Americans aren’t birthright citizens under the Constitution, so children of people temporarily or illegally in the United States aren’t either.
It is true that the birthright citizenship clause of the 14th Amendment did not include American Indians born into a tribe. This is clear from the original debates. Congressional opponents claimed that Chinese and “Gypsies” (Roma) recognized no allegiance to the United States, and so they were unfit for U.S. citizenship. But everyone agreed that their children would be citizens under the amendment. Only three groups were not “subject to the jurisdiction thereof”: children of foreign diplomats, children of those at war with the United States born on occupied territory, and children born into an Indian tribe.