On Friday, the Supreme Court announced it would hear challenges to President Donald Trump’s executive order ending birthright citizenship. The Fourteenth Amendment automatically makes all babies born on American soil citizens. Trump’s attempt to overturn the traditional reading of the constitutional text and history should not succeed.
The Fourteenth Amendment, ratified in 1868, provided a constitutional definition of citizenship for the first time. It declares that “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.” In antebellum America, states granted citizenship: all followed the British rule of jus soli (citizenship determined by place of birth) rather than the European rule of ius sanguinis (citizenship determined by parental descent). As the 18th-century English lawyer William Blackstone explained, “the children of aliens, born here in England, are generally natural-born subjects, and entitled to all the privileges of them.” After independence, the American states incorporated British rule into their own laws.
Congress created the Fourteenth Amendment not to change this practice, but to affirm it in the face of the most egregious travesty in American constitutional history: slavery. In Dred Scott v. Sandford (1857), Chief Justice Roger Taney concluded that slaves – even those born in the United States – could never become American citizens. According to Taney, the Founders believed that black Americans could never achieve equality, even though the Constitution did not exclude them from citizenship or prevent Congress or the states from protecting their rights.
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The Fourteenth Amendment outright rejected Dred Scott. It forever bars the government from depriving any ethnic, religious or political group of citizenship.
In United States v. Wong Kim Ark (1898), the Supreme Court affirmed the citizenship of a child born in San Francisco to Chinese parents. (Valerie Plesch/Photo Alliance via Getty Images)
The only way to avoid this plain reading of the constitutional text is to misinterpret the phrase “subject to its jurisdiction.” Scientists at the Claremont Institute (many of whom I consider friends) laid the intellectual foundation for Trump’s executive order; they claim that this phrase created an exception to jus soli. Claremont scholars Edward Erler and John Eastman argue that “subject to the jurisdiction thereof” requires that a citizen not only be born on U.S. soil, but that his parents be legally present. Because aliens owe allegiance to another nation, they argue, they are not “subject to the jurisdiction” of the United States.
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The Claremont Institute’s lecture improbably argues that the Reconstruction Congress simultaneously narrowed citizenship for aliens while dramatically expanding citizenship for freed slaves. There is little reason to understand Reconstruction—which was responsible for the greatest expansion of constitutional rights since the Bill of Rights—this way.
This argument also misinterprets the wording of “subject to the jurisdiction thereof.” Everyone on our soil, even aliens, is under the jurisdiction of the United States. Imagine reading the line differently. If aliens were not under our jurisdiction while on our soil, they could break the law and claim that the government had no jurisdiction to arrest, try, and punish them.
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However, critics respond that “subject to the jurisdiction thereof” must refer to citizens’ parents, otherwise they risk becoming redundant if born on US soil. But at the time of the ratification of the Fourteenth Amendment, domestic and international law recognized that limited categories of people could be on U.S. soil, but not under U.S. laws. For example, foreign diplomats and enemy soldiers occupying U.S. territory are immune from our domestic laws, even if they are present on our soil. A third important category shows that “subject to the jurisdiction thereof” was not merely a surplus. At the time of Reconstruction, American Indians living in tribal areas were not considered subject to U.S. jurisdiction. After reducing tribal sovereignty in the late 19th and early 20th centuries, the federal government extended birthright citizenship to Indians in 1924.
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The wording of the Fourteenth Amendment supports this simple reading. The Civil Rights Act of 1866, passed just two years before the ratification of the Fourteenth Amendment, extended birthright rights to those born in the U.S., except those “subject to any foreign power” and “Indians not taxed.” The Reconstruction Congress passed the Fourteenth Amendment due to uncertainty about the federal power to enact the Act of 1866. If the authors of the amendment had wanted “jurisdiction” to exclude children of aliens, they could simply have borrowed the exact wording of the 1866 law to extend citizenship only to those born to parents lacking “allegiance to a foreign power.”
Supreme Court of the United States (front row L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito and Associate Justice Elena Kagan, (back row L-R) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson pose for their official portrait in the East Conference Room of the Supreme Court Building on October 7, 2022 in Washington, DC (OLIVIER DOULIERY/AFP via Getty Images)
We have little data on the Fourteenth Amendment ratification debates in state legislatures, which is why constitutional practice and common law history are of such central importance. But the few cases in which Congress raised the issue appear to support birthright citizenship. For example, when the Fourteenth Amendment came up, critics of Congress recognized the broad scope of birthright language. Senator Edgar Cowan of Pennsylvania asked the amendment’s supporters, “Is the child born to the Chinese immigrant in California a citizen? Is the child born to a gypsy born in Pennsylvania a citizen?” California Senator John Conness responded affirmatively. Conness would lose his re-election because of anti-Chinese sentiments in California.
Courts have never questioned this interpretation of the Fourteenth Amendment. In United States v. Wong Kim Ark (1898), the Supreme Court affirmed the citizenship of a child born in San Francisco to Chinese parents. The Chinese Exclusion Acts denied citizenship to the parents, but the government could not deny citizenship to the child. The Court stated that “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth in the territory, in the allegiance and protection of the country, including all children born here of resident aliens.” The Court rejected the claim that aliens are not subject to “the jurisdiction” of the United States. Critics respond that Wong Kim Ark does not apply to illegal aliens because the parents were in the United States legally. But at the time, the federal government had yet to pass comprehensive immigration laws that distinguished between legal and illegal aliens. The legal status of the parents made no difference.
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President Trump has the right to ask the Court to overthrow Wong Kim Ark. But his administration must convince the justices to ignore the plain text of the Constitution, the weight of historical evidence from the time of the Fourteenth Amendment’s ratification, and more than 140 years of continuous government practice and legal interpretation.
It is unlikely that a conservative, originalist Supreme Court will reject the traditional American understanding of citizenship from the time of the Founding through Reconstruction to the present.
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