Birthright citizenship, or jus solis or better known by those opposed to immigration, anchor babies is back on the national agenda thanks to Donald Trump. For those not familiar with birthright citizenship, it is the concept that if you are born on United States soil, you are automatically a US citizen. Almost everyone agrees that anyone born in the United States is a US citizen. However, there are some, like Donald Trump, who argue that there is an additional requirement for those born on US soil in order to qualify for US citizenship; at least one parent must be either a US citizen or legally in the country.
Donald Trump, and those who believe the same thing, argue that you cannot be born in the United States and automatically qualify for citizenship, if the parents are not legally in the US. Their argument centers on an interpretation of the 14th Amendment to the United States Constitution.
The Fourteenth Amendment, section 1 states; “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The sticking point is the part where the Constitution states, “and subject to the jurisdiction thereof.”
As many of you know, jurisprudence in the United States is based on new interpretations of the law through federal court or Supreme Court rulings. There are generally two schools of thought about interpreting the constitution – its intent and what the courts have ruled previously.
From the onset, I am going to ignore the “intent” proviso because over 200 years have passed since the US Constitution was adopted. If everyone were to focus on “intent” then there would be no need for the Supreme Court interceding to clarify laws across the nation, sometimes contradicting itself. In addition, Constitutional amendments take care of “intent” by making the necessary changes when needed by the nation. I realize this is an oversimplification, however if I were to get into the minutia it would distract from the underlining issue. I believe we can all agree that instead of “intent” it is better to look at how the courts have ruled on the Fourteenth Amendment.
Therefore, let’s focus on the clause “and subject to the jurisdiction thereof” and how it has been interpreted by the courts.
On March 28, 1898, the United States Supreme Court ruled on the case titled, “United States v. Wong Kim Ark.”
The majority of the Court opined that “to hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny the citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have been considered and treated as citizens of the United States.”
Some of you are thinking that’s not the same thing because the country wasn’t dealing with an influx of immigrants for economic purposes back then. Like today, in the 1800’s, the US was divided about immigration because jobs were scarce and the economy was stagnant. Except that back then it wasn’t Mexicans but the Chinese that were being singled out.
Wong Kim Ark was a Chinese cook who was born in 1873 in San Francisco. His parents were Chinese immigrants who lived and worked in the United States but were not legally in the country. It is important to note that during this time it was impossible for non-whites to become US citizens through naturalization. Non-whites were excluded from naturalization during this period. Upon returning to the United States, Wong was denied entry because he was not a US citizen, according to the port authority, although he had been born in the United States. He sued.
Supreme Court Justice Horace Gray, writing for the majority, wrote that law and history “irresistibly lead us to these conclusions: the Fourteenth Amendment affirms that ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.” The term resident alien is important to note here in that being Chinese, his parents could not be “legally” in the country because, as stated above, at the time this was impossible for non-whites to become naturalized citizens. Justice Gray added, “The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled in the United States.”
The dissent was written by Justices Melville Fuller and John Harlan. They wrote, “the true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage.”
Although it is clear that the majority of the Court agreed that Wong was a citizen, regardless of the parent’s legality in the country, I will nonetheless address the dissention. Fuller and Harlan focused on the concept of jus sanguinis, meaning that citizenship is derived from the parent and not the birthplace. Jus sanguinis is a European concept accepted before the United States became a country. It is based on the concept that the citizenship of the parents is passed on to the child.
Except that for the New World, that was a problem because it would mean that many citizens would still be British citizens because their parents were British subjects. As nations began to form in the New World, the concept of jus soli became the new norm. Jus soli gives citizenship based on the place of birth, rather than the citizenship of the parents.
In the Wong ruling, the Supreme Court affirmed that citizenship in the United States is bestowed upon via the birth of the citizen, regardless of the status or citizenship of the parents. Additionally, this ruling specifically addressed the Fourteenth Amendment.
Since the United States jurisprudence is based on rulings issued by a higher court, it is clear that the highest court of the nation has ruled that “and subject to the jurisdiction thereof” is moot.
Even more important, the court ruling also addressed the argument of the exception to the jus soli rule for diplomats and hostile forces occupying the country by accepting it as a point of fact. Since, there is no occupying hostile force in the United States and those availing themselves of US citizenship through birthright are not children of diplomats, that argument as well is also moot.
If and when a law is passed or a Constitutional Amendment is adopted specifically limiting birthright citizenship, the law of the land is clear; anyone born in the United States is a citizen regardless of the status of the parents.