Ending Birthright Citizenship Does Not Require A Constitutional Amendment
The keys to understanding Birthright Citizenship:
- The plain meaning of the 14th Amendment means that one must BOTH be born in United States AND be subject to the jurisdiction thereof. Since there are two explicit requirements, they both cannot be met by simply being born on U.S. soil.
- The history of the drafting of the 14th Amendment makes clear that the language “subject to the jurisdiction thereof” meant a citizen could not owe allegiance to any other foreign power. This excludes illegal immigrants who are in defiance of U.S. jurisdiction and are citizens of a foreign power.
- The Supreme Court has never held that the children of illegal immigrants born in the United States are automatically citizens.
- Because the Supreme Court has not interpreted the Constitution to mandate automatic birthright citizenship, the Congress can pass a law to correct the current misguided and incorrect policy of automatically granting citizenship to children of illegal immigrants.
Plain Meaning of the Language of the 14th Amendment:
The Citizenship Clause of the 14th Amendment states, “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 where they reside.”
By its own terms, the language in the amendment precludes the notion of universal automatic birthright citizenship. It would have been quite simple for the language to exclude “and subject to the jurisdiction thereof” to accomplish the goal of bestowing citizenship on any child born in the United States no matter the status of their parents. The 14th Amendment’s addition of a jurisdictional requirement to the territorial requirement, however, denies any interpretation that birth alone grants citizenship.
Counter to this logic, proponents of universal automatic birthright citizenship claim that those born in the United States necessarily are subject to the jurisdiction of the country. However, this renders the language “subject to the jurisdiction thereof” superfluous. Why would the drafters of the 14th Amendment include this qualifier at all if it was met simply by virtue of being born in the United States? The legislative history outlined below will make clear that the addition of “subject to the jurisdiction thereof” was designed specifically to make sure the people granted citizenship did not have divided political loyalties.
Legislative History of the 14th Amendment:
During Congressional debate of the Citizenship Clause it was made clear that the drafters did not intend automatic birthright citizenship for all persons born in the U.S. Senator Jacob Howard, a drafter of the 14th Amendment, in floor debate said of the Clause:
“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.”
Senator Howard also made clear that simply being born in the U.S. was not enough to be a citizen when he opposed an amendment to specifically exclude Native Americans from the Citizenship Clause. He said, “Indians born within the limits of the United States and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.”
Notice the reasoning deployed, Native Americans maintain their tribal relations so they are not “subject to the jurisdiction thereof.” Senator Edgar Cowan said, “It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power.”
Senator Lyman Trumbull said:
“The provision is, that ‘all persons born in the United States and subject to the jurisdiction thereof, are citizens. That means, “subject to the complete jurisdiction thereof.” (emphasis added)
He further elaborated, “What do we mean by subject to the jurisdiction of the United States? Not owing allegiance to anybody else.”
There was still more discussion of the language by Senator Reverdy Johnson. He said:
“Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power for that, no doubt, is the meaning of the committee who have brought the matter before us, shall be considered as citizens of the United States.”
Supreme Court on Birthright Citizenship for illegal immigrants:
While some have discussed birthright citizenship as if it is settled law that any person born in the U.S. is a citizen, the Supreme Court has never ruled as such. In the famous 2004 Supreme Court case, Hamdi v. Rumsfeld, Taliban fighter Yaser Esam Hamdi was discovered to have been born in the United States to parents that were subjects of the Kingdom of Saudi Arabia. Even though he was born in the United States, the Court never called him a citizen and the Court made no declaration in that case that anyone born on American soil was automatically a citizen.
In the Slaughter-House Cases of 1873, the Supreme Court said, “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Next, in 1884, the Supreme Court addressed a claim of citizenship in Elk v. Wilkins. The Court held that John Elk did not meet the jurisdiction requirement of the 14th Amendment because he was a member of an Indian tribe at birth. The Court said that even though Elk was born in the U.S. he did not meet the “subject to the jurisdiction thereof” requirement because that required that he “not merely be subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction.”
Proponents of birthright citizenship for illegal immigrants point to the 1898 Wong Kim Ark case. However, that case dealt with a man that was born to parents that were legally and permanently domiciled in the United States at the time of his birth. In that case, there was more expansive language used on birthright citizenship, but it was neither the holding of the case nor does it operate as binding precedent on the Court or as the law of the land.
Congressional power to change the policy:
Under the Constitution and reiterated by the Supreme Court, Congress has plenary power over immigration and naturalization. We see this in Article I Section 8 of the Constitution and Section 5 of the 14th Amendment explicitly grants Congress the power to enforce the Citizenship Clause.
So not only does Congress have the power of naturalization in Article I, but the 14th Amendment provides Congress the power to enforce the Citizenship Clause. Together, these two provisions make it clear there is no need to amend the Constitution to change the current faulty birthright citizenship policy.
Congress has the power and duty to say who can be a citizen of the United States. The legislative branch has a responsibility to uphold the Constitution, and on the issue of birthright citizenship it is clear the plain meaning of the Citizenship Clause as originally understood is being violated. The Congress can and should make the legislative fix necessary to correct this problem.
It is undisputed that the 14th Amendment’s Citizenship Clause requires that one is both born in the United States and subject to the jurisdiction of the United States. Further, no fair reading of the legislative history of the drafting of that Clause leads to any conclusion other than it required those granted citizenship have complete allegiance to the United States.
Logic dictates that illegal immigrants in defiance of the jurisdiction of the United States and citizens of foreign powers are not subject to the jurisdiction of the United States as required by the 14th Amendment. And the Supreme Court has never held the opposite to be true. Congress, therefore, with its plenary power over immigration and empowerment to enforce the Citizenship Clause can restore the correct birthright citizenship policy through legislation. And indeed, if we are to have a rational immigration policy controlled by government as opposed to one controlled by every person who illegally enters, Congress must return to the original meaning of the 14th Amendment.
I authored H.R. 140, The Birthright Citizenship Act in the House for many years in order to restore the 14th Amendment and the Rule of Law.
 The Congressional Globe, May 30, 1866. Debate on the Senate Floor. Remarks of Senator Howard. Available at http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11.
 The Congressional Globe, May 30, 1866. Debate on Senate Floor. Remarks of Senator Cowan. Available at http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11.
 The Congressional Globe, May 30, 1866. Debate on Senate Floor. Remarks of Senator Trumbull. Available at http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14.
 The Congressional Globe, May 30, 1866. Debate on Senate Floor. Remarks of Senator Johnson. Available at http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14.