Birthright Citizenship

            The topic of discussion for this Constitution Monday is birthright citizenship. The Citizenship Clause of Amendment 14 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 meaning of the clause seems clear, but it is now clouded.

            The candidacy and election of Donald Trump brought a question about birthright citizenship to the forefront of the national discussion. The question is, “Who becomes a citizen of the United States by birth?” A few weeks ago Amy Swearer wrote the following about the original meaning of the Citizenship Clause and what it means today. 

Current policy broadly recognizes almost every child born within the U.S. as a citizen, but the original meaning of the Fourteenth Amendment undermines any claim that universal birthright citizenship is constitutionally mandated. Unlike nonimmigrant and illegal aliens, immigrant aliens enjoy many of the rights and are subjected to many of the duties that are normally reserved for citizens. They have taken a substantial and necessary step toward naturalization that is akin to previous laws regarding declarations of one’s intent to naturalize. They alone of the three general categories of aliens (immigrant aliens, nonimmigrant aliens, and illegal aliens) have both lawful and permanent domicile in the United States.

            Swearer indicated that there are three groups of aliens living within the borders of the United States. They are immigrant aliens, non-immigrant aliens, and illegal aliens. A person in the first group – immigrant aliens – is also known as a Lawful Permanent Resident and has the right to reside permanently in the United States and to work without restrictions here.

            A person in the second group – non-immigrant aliens – seeks to enter the United States temporarily for a specific purpose. They must have a permanent residence outside the United States and qualify for the non-immigrant classification.

            A person in the third group – illegal aliens – is a person from a foreign country who enters or resides in the United States unlawfully and without authorization of the United States. There are thousands of people in this group entering the United States every day!

            Swearer wrote a more recent article in which she refers back to the first article. She explains that policy – not Amendment 14 – has driven the birthright citizenship problem, and policy – not another Amendment to the Constitution – can change it.

As I explain, however, in my recent Heritage Foundation legal memo titled “The Citizenship Clause’s original Meaning and What It Means Today,” Congress definitively settled that question in 1866 when it passed the 14^th Amendment. The problem is that Congress’ answer was far different from what Americans today often assume. Even though the U.S. government has long abided by a policy of universal birthright citizenship – that is, of treating all persons born in the United States as citizens, regardless of the immigration status of their parents – the reality is that the Constitution doesn’t mandate this policy.

In fact, while the Citizenship Clause eliminated race-based barriers to birthright citizenship, Congress expressly intended to limit birthright citizenship based on the strength of a person’s relationship to the United States.

More importantly, the government today needn’t amend the Constitution in order to restrict citizenship for the U.S.-born children of illegal or non-immigrant aliens. It could simply stop abiding by a broad policy never required by the Constitution in the first place.

            It seems that someone somewhere will have to challenge the current policy of bestowing U.S. citizenship upon most babies born on U.S. soil. If such a case were to go before a conservative-majority Supreme Court, the original meaning of Amendment 14 may be upheld. If it were to go before a liberal-majority Supreme Court, we can be certain that the status quo would continue. This is just one more reason why Americans must re-elect Donald Trump!