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Q&A: Birthright Citizenship

The political season has once again brought to the fore the question of who is entitled to birthright citizenship. Former President Donald Trump, now the presumptive presidential nominee of the Republican Party, has proposed that on his first day in office, by executive order, he will revoke birthright citizenship for future children born to undocumented immigrants.  But Trump’s allies and legal advisers would go much further, denying birthright citizenship to all children born to noncitizens, thus undermining the premise of the 14th Amendment to the Constitution, which states: 

This issue is fundamental to our understanding of what it means to be an American.  Proposals to narrow birthright citizenship fly in the face of more than 125 years of common practice going back to the judicial interpretation of the 14th Amendment — and beyond that to the nation’s founding. Nonetheless, a public policy industry has developed in recent years that would redefine and restrict birthright citizenship, largely in response to increased immigration, both legal and illegal.  Those holding the most extreme view argue that neither the children of undocumented migrants nor those of legal immigrants who have not yet naturalized are entitled to birthright citizenship. The proponents of this view also insist that revoking birthright citizenship for disfavored groups can be accomplished through executive action or simple legislation, rather than by amending the Constitution. Given the prominence this issue is likely to garner in the coming months, the following Q&A attempts to provide answers to some of the likely questions that will arise.  

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

Q. Why was the 14th Amendment necessary in the first place? 

A. Although birthright citizenship had been the practice in America from our founding, it originally excluded certain classes of individuals, including Native Americans and enslaved Africans. The U.S. Supreme Court’s Dred Scott decision (1858) went much further, however, excluding from citizenship all those of African descent — enslaved or free, living in slave states, free states and all U.S. territories. The decision helped spark the Civil War, the deadliest in our nation’s history.  In the aftermath, Congress was eager to ensure that newly emancipated blacks not be deprived of their rights in states previously part of the Confederacy as well as to guarantee that African Americans were entitled to citizenship regardless of where they resided, overturning the Supreme Court’s Dred Scott decision.  

Q. When Congress passed the 14th Amendment, did members intend for its protections to extend only to former slaves and others of African descent? 

A. Congress passed and the states ratified the Reconstruction Amendments (13th, 14th and 15th) in the five years following the end of the Civil War to right specific wrongs endured by African Americans. The 13th Amendment abolished slavery in the United States, and the 15th Amendment  ensured that citizens could not be denied the right to vote “on account of race, color, or previous condition of servitude” by any state or the federal government. But the 14th Amendment, the most complex and far-reaching of the Reconstruction amendments, makes no reference to either slavery or race and specifically says, “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.”  The Senate debated the meaning of “citizenship” in the amendment at great length, which can be read here.  The debate and its ultimate resolution make clear that the language granted birthright citizenship to all persons born in the United States, with a few minor exceptions, addressed below. 

Q. Opponents of birthright citizenship for the children of nonnaturalized immigrants focus on the phrase “and subject to the jurisdiction thereof” as a disqualifier for children born to parents who were undocumented at the time of their birth. What about parents who are in the United States legally — would the phrase also exclude their children? 

A. Although many ordinary individuals oppose automatic citizenship for children born on U.S. soil to undocumented immigrants, the organized movement to restrict birthright citizenship goes much further. Leading proponents of restriction argue that only the children of native-born Americans and naturalized immigrants are eligible for birthright citizenship. They would exclude children born to permanent, legal U.S. residents, as well as those born to temporary workers, students and others who have not yet become full U.S. citizens. Their argument is that nonnaturalized citizens are not subject to “complete, political jurisdiction” of the United States, but merely to “partial, territorial jurisdiction.”  

Q. But what did the authors of the amendment mean by “subject to the jurisdiction thereof”?  Who were they intending to exclude? 

A. There was extensive and sometimes heated debate over the amendment, with three categories of persons discussed: the U.S.-born children of foreign diplomats, Native Americans, and some immigrant groups.  One of the primary sponsors of the amendment, whose proposed language became the final text of the first sentence of Section 1, was clear when asked what exclusions were envisioned by the term “subject to the jurisdiction.” Sen. Jacob Howard (R-Michigan) replied: “I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. 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. 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” 

Q. Why did the amendment exclude Native Americans? 

A.  Native Americans did not achieve full citizenship rights, including voting, until 1924. The relationship between the U.S. government and Native Americans was fraught with enmity, discrimination and outright warfare. Up to and including the period the 14th Amendment was adopted, most Native Americans were considered citizens of sovereign nations with which the United States either had treaty relationships or was involved in open hostilities. Various wars between the U.S. government and tribes took place throughout the 19th century. In 1866, the U.S. signed treaties with five tribes in what became known as the Oklahoma territories, which provided that the tribes agreed to end slavery and extend rights to formerly enslaved blacks and their descendants, among other provisions.  

Q. What about the children of immigrants living in the United States at the time of passage? Were they considered citizens by birth? 

A.  A number of senators suggested that other groups also should be excluded, including Chinese, “Gypsies,” and others who were described in blatantly racist terms. Sen. Edgar Cowan (R-Pennsylvania) worried that California might be “invaded by a flood of Australians or people from Borneo, man-eaters or cannibals,” or that “if another people of a different race, of different religion, of different manners, of different traditions, different tastes and sympathies are to come there and have the free right to locate there and settle among them, and if they have an opportunity of pouring in such an immigration as in a short time will double or [triple] the population of California, I ask, are the people of California powerless to protect themselves?”  Sen. John Conness (R-California), who represented California and was an immigrant from Ireland himself, took exception to Cowan’s words.  In a long response, peppered with humor but replete with rebukes to the prejudices of those who would fear an “invasion” of foreign elements, Conness said the following: 

The proposition before us, I will say, Mr. President, 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. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. . . . Here is a simple declaration that a score or a few score of human beings born in the United States shall be regarded as citizens of the United States, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens; and that such a provision should be deprecated by any person having or claiming to have a high humanity passes all my understanding and comprehension. 

Q.  But did the framers of the amendment envision large numbers of children born to noncitizen parents, or did they see it as just a minor factor that would not affect the demography of the still relatively young nation?  

A. The 19th century saw large-scale immigration to the United States, which sparked a backlash. A nativist movement in the 1850s roiled contemporary politics, with the Know Nothing Party (later the American Party) winning elections at the local, state and national level and fielding a presidential candidate in 1856, former president Millard Fillmore, who garnered eight electoral votes. The Know Nothings were virulently anti-immigrant and especially hostile to Catholics, who came in great numbers from Ireland mid-century. The 1860 census counted more than 13 percent of the population in the U.S. who were foreign born, a figure just below the current (as of 2022) 13.9 percent, but lower than the percentage of foreign-born in 1870, 1890 and 1910. Senators debating the topic of whether the U.S.-born children of foreign-born parents were entitled to birthright citizenship were quite aware of the demographic shifts that had taken place in the mid-19th century. No one suggested that only the children in this population whose parents had naturalized should be eligible — nor was naturalization the custom for many immigrants, especially women. The naturalization process in the 19th century was a far cry from today’s, with certificates of naturalization issued without federal supervision, record-keeping haphazard, and standards generally lacking uniformity. It would have made little sense to senators debating birthright citizenship to insist that only those children born to naturalized parents be eligible.  

Q. But what about children born to parents who are in the U.S. illegally? At the time of adoption of the 14th Amendment, the immigrants whose children were guaranteed automatic citizenship were all legal immigrants, right? 

A. The category of “illegal immigrants” was not one the framers of the 14th Amendment would have readily understood. At the time, the United States essentially had open borders, with few restrictions on who could immigrate — prohibiting only criminals, prostitutes and some mentally or physically infirm persons — and enforcement of even these restrictions was unsystematic before the late 1800s. After the Civil War, some states did seek to restrict immigration to their jurisdictions, but these state laws were found unconstitutional by the Supreme Court in 1875. The court found in Chy Lung v. Freeman that “The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the states.” Nonetheless, the impetus behind many of those state laws was to prevent groups thought to be “undesirable” from coming — especially the Chinese who had been brought to the United States to help build the railroads and mine for precious metals in the West. But the antagonism to certain immigrant groups did not disappear with the court’s decision, just the enforcement mechanism against them. Not long after the Chy Lung decision, Congress passed the first federal law outright banning a specific group from immigrating, the Chinese Exclusion Act, which would later be expanded to restrict immigration from other parts of Asia and to prevent Chinese-born U.S. residents from returning to the United States if they visited China. The same year, Congress took up broader legislation, the Immigration Act of 1882, which placed a “head tax” on those immigrating to the U.S., created a federal bureaucracy to oversee immigration, and authorized the exclusion of certain classes of persons.    

Q. But we do have laws now that determine who may immigrate and under what circumstances, as a temporary student or worker or permanent resident. We also have an estimated 10.5 million people living in the United States who have not been admitted legally or whose permission to be here has lapsed. Has the Supreme Court ever settled how birthright citizenship applies to the children of these immigrants?  

A. The Supreme Court first took up the issue of birthright citizenship as it applied to the children of immigrants in 1898 in U.S. v. Wong Kim Ark. Wong was born in San Francisco in 1873 to parents who had emigrated from China and resided in the city. After Congress passed the Chinese Exclusion Act and hostility toward Chinese in America was at its peak, Wong’s parents returned to China in 1890. A teenager, Wong accompanied them but returned to live in California later the same year. In 1895, after a visit to his parents in China, Wong was denied re-entry at the port of San Francisco, which began a three-year struggle to prove his right to American citizenship. The Court found, notwithstanding his parents’ return to China or their ancestry, the child born to them while they were domiciled in the United States “becomes at the time of his birth a citizen of the United States.”  Perhaps most significant in terms of the current debate, in which some opponents argue that children born to nonnaturalized immigrants cannot be citizens by birth because they, like their parents, are subjects of a foreign power, the Court declined to bar him from citizenship. The Court in Wong Kim Ark noted that at the time of Wong’s birth, his parents were “subjects of the Emperor of China,” and moreover that his parents could not naturalize because “acts of Congress or treaties” prevented it. Nonetheless, the majority wrote, such facts “cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, ‘All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’”   

Q. Has the Supreme Court ever revisited the Wong Kim Ark case?  

A. Neither the findings nor the reasoning in the case has ever been revised by the court. One of the chief proponents of restricting birthright citizenship, John Eastman of the Claremont Institute, has tried to persuade the court that it should reconsider the issue, however. Hamdi v. Rumsfeld (2004) did not deal with the birthright citizenship clause of the 14th Amendment, but rather the due process clauses of the 5th and 14th amendments. The issue was whether a U.S.-born man captured fighting for the enemy during the war in Afghanistan was entitled to be held indefinitely as an “enemy combatant” without a right to challenge that detention before a neutral tribunal. In his amicus brief in the case, Eastman argued that Yaser Esam Hamdi was not a U.S. citizen, despite having been born in Baton Rouge, Louisiana, because his parents were on temporary visas at the time of his birth and the family returned to Saudi Arabia with their son when he was a small child. Not a single justice — even those who opposed granting Hamdi the right to challenge his detention in court — questioned whether he was a U.S. citizen by birth, with Justice Antonin Scalia averring that Hamdi was “a presumed American citizen.”  

Q.  Is there any way for opponents to change the birthright citizenship guarantee? 

A. The only ways to change birthright citizenship guaranteed in the Constitution are through amending the Constitution itself or successfully challenging current interpretation of the 14th Amendment in the courts. Opponents have argued that simple legislation could deprive children born to undocumented immigrants of their automatic right to citizenship, and bills to do so have been introduced repeatedly but have gone nowhere, largely because scholars almost uniformly agree that they would not pass constitutional muster. The irony of the effort to revoke birthright citizenship is that it would increase the undocumented population in the U.S. instantly, adding millions to the current rolls of unauthorized persons — at least 4 million according to a 2010 study. While modifying birthright citizenship — even prospectively for children yet to be born — would be possible through a constitutional amendment passed by two-thirds of both houses of Congress and ratified by vote of legislatures in three-fourths of states, it would drastically change the idea of America. 

Conclusion 

Birthright citizenship is one of the characteristics that makes the United States exceptional. Ours has traditionally been a welcoming country through most of our history as a nation. We have not always been perfect — our long history of slavery and Jim Crow laws denied many Americans their rights as full citizens — but we have generally moved forward to expand rights, not restrict them. With the 13th, 14th, 15th and 19th amendments, we expanded freedom, citizenship and the right to vote to blacks and women. In the various civil rights acts going back to 1866, the impetus was to make the rights enshrined in the post-Civil War amendments enforceable. Though the journey was not without missteps — the Supreme Court in Plessy v. Ferguson (1896), for example, allowed for “separate but equal” accommodations for nonwhites — the courts and Congress eventually have righted the wrongs by reversing bad precedents and passing even more expansive guarantees. For nearly two and a half centuries, the United States has moved ever closer to realizing the ideals of the Declaration of Independence. Now is not the time to retreat. 

Linda Chavez is a senior fellow at the National Immigration Forum.

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