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.
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 14th 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!
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