Birthright Citizenship Stands on Extremely Weak Legal Ground—Here’s Why

Constitutional Originalism is defined as “a principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment.” Originalism is often coupled with what’s called “intentionalism,” which means that one’s understanding of the Constitution and other founding documents is determined by “how the provision was understood at the time it was drafted and ratified.”

I’m a Constitutional Originalist, and as such, I don’t understand the freakout over Donald Trump’s desire to end what’s known as “birthright citizenship.” Average Americans and pundits alike are up in arms, saying it would be unconstitutional to end birthright citizenship, and that to do so legally would require a new Amendment, ratified by 3/4 of the states—which would be nearly impossible.

Article one of the 14th Amendment—which is where the notion of birthright citizenship comes from–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 wherein they reside.”

The argument being made by many is that the text of the 14th Amendment plainly states that if one is born in the United States, one is a legal citizen. However, an Originalist interpretation adds nuance (a word I hesitate to use, because Democrats use it to justify lies, but is nonetheless apropos) to the argument.

The intent of the first portion of article one of the 14th Amendment was to grant rights to freed black slaves.

Constitutional scholar Linda R. Monk writes:

“In the sectional crisis that divided America before the Civil War, the states fiercely disagreed about the legal status of slaves.”

Dred Scott, an African American slave, sued for his freedom in 1847. After a lengthy process, and multiple trials at courts of increasing importance, the Supreme Court ruled in 1857 that African Americans were not citizens. Chief Justice Roger Taney wrote:

“They had for more than a century before been regarded as beings of an inferior order…and so far inferior, that they had no rights which the white man was bound to respect…”

After the Civil War, the 14th Amendment was ratified in 1868 in order to assure the right of citizenship to former slaves.

Monk writes:

“The Fourteenth Amendment was intended to overturn the Dred Scott ruling and protect former slaves, who were not recognized as citizens by Southern states even after the Civil War and emancipation.”

Senator Jacob Howard, who authored the citizenship clause, made clear his intent when he said:

“This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.

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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

In 1880, when John Elk, an Indian man, tired to register to vote in Nebraska, the first real debate about the meaning of the phrase “subject to the jurisdiction thereof” in the 14th Amendment was ignited.

In the Majority Opinion for Elk v. Wilkins, Justice Horace Gray wrote:

“The question then is, whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States, within the meaning of the first section of the fourteenth amendment of the constitution…

The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities…The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States

The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States.”

Elk lost the case in a 7-2 decision. However, the Indian Citizenship Act of 1924 finally ruled that all Indians were citizens.

Monk writes that in an 1898 case, United States v. Wong Kim Ark, it was ruled that the “jurisdiction thereof” exclusion applied only to “children born to foreign ambassadors or occupying enemies.” This ruling was based, according to Monk, on British law—specifically “Calvin’s Case” (1608).

The dissenting opinion, written by Chief Justice Melville Fuller, was scathing:

“I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country…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

there is nothing to show that, in the matter of nationality, they [the Framers] intended to adhere to principles derived from regal government, which they had just assisted in overthrowing.”

But that wasn’t the end of the argument. In 1985, the case of INS v. Rios-Pineda was decided.

According to the Independent Sentinel:

“In INS v. Rios-Pineda (1985), the Court said in dicta, or language not directly part of the holding in the case, that children born in the United States to illegal immigrants are citizens…”

However, the distinction between those who entered lawfully and unlawfully was added as a footnote by Justice William J. Brennan in Plyler v. Doe in 1982.

Brennan wrote:

“[There is] no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Given the history of the 14th Amendment–that the clear intention of its authors was to grant citizenship to African American slaves–and given the court ruling in Elk v. Wilkins, and the brutal dissent in United States v. Wong Kim Ark, it can be reasonably argued that the “jurisdiction thereof” exception does indeed include the children of those illegally residing in the United States.

It can also be very reasonably argued that a Constitutional Amendment would not be required to rescind birthright citizenship, but rather congressional intervention, as Judge Richard Posner has suggested.

However, if it would require a re-examination on the part of the Supreme Court, I am confident that due to the the clearly delineated original intent of the 14th Amendment, and (if needed) the vast legal precedent set by the Elk case and the dissent in Wong Kim Ark, birthright citizenship could be eliminated.