The Question of Birthright Citizenship

The Supreme Court Is Going to Look at It

The United States is one of the few countries in the world that grants citizenship to anyone born on its soil. Tourists, illegal aliens, visa holders, it doesn’t matter. If you are born in the country you are American. There are only a few exceptions. For instance, the babies of foreign diplomats are not granted citizenship.

President Trump wants to end this practice because it encourages illegal immigration and can be abused. It encourages illegal immigration because an American child cannot be deported, even if the parents can be. As a result, authorities have been reluctant to deport parents if the American child would be all alone. Thus having a child here is a potential way to stay.

There are also many ways to abuse the system. “Birth tourism” is the practice of visiting the US just before having a baby so that the child will be American. An American passport is the golden ticket for unstable countries. If something goes wrong at home, show up at an American embassy and the Marines will protect you.

In keeping with Trump’s more general policy of immigration enforcement, he issued an executive order on the day of his second inauguration to the effect that the government will no longer issue citizenship papers to children born in the United States of parents here illegally or temporarily (visiting, studying, or on work visas). It was immediately challenged and has not yet been put into effect.

Both the order and Supreme Court decision, if it finds for the President, cannot have any power retroactively. No one who is a citizen already will be in jeopardy because of anything that happens now. This is a principle of the common law, which also happens to be at the heart of the question over birthright citizenship.

The Common Law

The United States is a “common law country,” like Canada, Australia, and New Zealand. These countries all take the principles of their legal systems from English common law. The simplest way to understand the common law is to think of the term “common usage,” or the law is whatever people have always done.

“We have always done it this way” isn’t a profound legal principle, but it does have profound effects. The idea is that the rules shouldn’t change except for a really good reason. The common law comes from court cases where initially there were no statues (laws made by king or parliament) to decide the issue or where the statutes needed to be interpreted. Murder is illegal, but what about accidental death? The common law was able to develop precise rules about the gray areas over hundreds of years by looking at how cases were decided previously. This is the basis of the legal doctrine of stare decisis (the earlier decision stands). Only rarely and (one hopes) with very good reason would a judge overturn a precedent. In that way everyone knows the rules and there is stability to the law.

The Fourteenth Amendment

The Fourteenth Amendment (1868) was adopted after the Civil War to correct for several problems relating to slavery. For one, it eliminated the 3/5 compromise by counting all humans equally for the purpose of the census and determination of the number of seats in the House of Representatives. (Slaveowners wanted to count the slaves, by the way, because counting people who couldn’t vote would give them more seats in the House.) It barred any Confederates who had previously taken an oath to protect the Constitution from ever serving in the federal government or the military. But it also overturned the decision in Dred Scott v. Sandford (1857) that claimed no one of African descent could ever be an American citizen and the attendant position that even if a state did confer citizenship on such a person, that did not grant American citizenship, only state citizenship. (It contains other important ideas that will probably come up in future posts.)

The common law digression above is important because the whole issue over birthright citizenship has to do with common law interpretations of the terms of the Fourteenth Amendment: “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.” What does “subject to the jurisdiction” mean? It has never been defined in statute, so all the Supreme Court has to go on is how the term has been used over the course of legal history. (Medieval English law will be used in the court case, which is kind of exciting for some of us.)

United States v. Wong Kim Ark (1898)

One of the few cases involving the citizenship clause in the Fourteenth Amendment is United States v. Wong Kim Ark (1898). Mr. Wong Kim Ark was born in San Francisco and at the age of 21 visited China. He was denied reentry to the United States because officials said he was not a citizen. (Chinese were very poorly treated in this country at the end of the 19th century, so anti-Chinese racism was probably as much of an issue as proper documentation.) He sued, it went all the way to the Supreme Court, and he won in a 6-2 decision.

Just as today, the 1898 case revolved around what “subject to the jurisdiction” means. The majority on the Court decided that, since his parents were not on a diplomatic mission for the Emperor of China when he was born, they were not “subject to the jurisdiction” of the Emperor. They must have been subject to the jurisdiction of the United States. Therefore, he was born as an American citizen.

Much like critics of the current understanding, the dissent pointed out that the Fourteenth Amendment was intended to guarantee the citizenship of the formerly enslaved people who had been living here for generations. The freed slaves were not also citizens of some other country. “Jurisdiction,” it was argued, means more than simply a geographical location where laws are enforced.

Diplomats have to obey laws, too, when visiting a country but the common law has never viewed their children as citizens. (Note that the Fourteenth Amendment says nothing about diplomats. This is one of those “common usage” things that makes up the common law.) Visitors also can’t be drafted into the military or be called to jury duty, for instance. The “jurisdiction” the government has over them is clearly limited. Non-citizens can be deported, too, further complicating the whole definition of “subject to the jurisdiction.” Deportation implies that some other country has jurisdiction over them. But the point is that none of this is laid out in the text of the law. There are good arguments on both sides of the issue.

The Politics of It All

The stakes today are much higher than when Wong Kim Ark tried to reenter the United States. Although birthright citizenship has been recognized for more than a century, the country has tens of millions of illegal immigrants, millions of visa holders, and millions of visitors each year. Birthright citizenship plays into the politics of immigration, which is becoming more fraught each day in all but the most restrictive countries in the West (I’m thinking of Hungary and Poland).

While a decision one way or the other will impact the lives of millions, the political effects will probably be more significant in the long run. If the Court rules in favor of the President and his executive order, the cause of immigration restriction will have a big win. If, on the other hand, they rule his order unconstitutional and reaffirm birthright citizenship, a lot of pregnant women will breathe easier. Whatever may happen, mass migration around the world, coupled with catastrophically low birthrates in the West, will make the movement of peoples a recurring topic for us.