Donald Trump, Birthright Citizenship, and the Fourteenth Amendment

Donald Trump just released a six-page policy paper on immigration. Among the key points in the document, one particular item is getting quite a lot of attention. Trump wants to stop the “anchor baby” loophole from our interpretation of the Fourteenth Amendment by more narrowly defining birthright citizenship:

policy paper released by 2016 Republican frontrunner Donald Trump this weekend has reopened a question in the immigration debate that some of Trump’s fellow GOP candidates may want to avoid: Is it time to end birthright citizenship?

According to Trump, it is — and his plan promises to do so. “This remains the biggest magnet for illegal immigration,” Trump says in the policy paper. He cites a 2011 survey by the right-leaning Rasmussen polling organization, which found that 65 percent of likely U.S. voters do not support birthright citizenship, which is automatic citizenship for anyone born on U.S. soil. A 2010 CBS News poll found that 47 percent of Americans are in favor changing the law so that the children of immigrants in the U.S. illegally cannot become citizens, whereas 49 percent say it should stay the same.

First off, Trump does not want to end birthright citizenship without exception. He wants to end birthright citizenship for illegal immigrants. Meaning that birthright citizenship would still hold for any children who are born with at least one US citizen parent. As it is now, the United States automatically grants citizenship to any person born in the United States, even if that person is born to tourists or illegal aliens.

Just to be clear, most countries do not extend citizenship to the children of illegal aliens and tourists. Mexico and Canada share the practice with the US, but they are anomalies in the developed world. In other words, pretty much every other developed nation in the world requires that you either go through the citizenship process or be born to someone who is already a citizen in order to become a legal citizen of their country.

Just why does the United States extend birthright citizenship to illegal aliens and tourists? Because of a particular reading of the Fourteenth Amendment. In particular, this particularly broad clause:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.

It has been pointed out quite a number of times that the Fourteenth Amendment, and its extension of birthright citizenship, was intended to grant citizenship to former slaves and their children. It was feared that some states would limit the rights of former slaves and their children by arguing that African slaves were not technically citizens of the United States. The Fourteenth Amendment made sure that couldn’t legally happen.

But it has, obviously, had unintended consequences as the Supreme Court has argued multiple times that it applies to “all persons” born in the US, not just African-Americans.

But given that fact—that the Supreme Court has nearly always extended birthright citizenship to all children born in the US, regardless of the legal standing of their parents—it is unlikely that Trump’s plan for immigration reform will stand without some kind of Constitutional amendment. And let’s be realistic: that amendment would never happen.

Which means that Trump is accomplishing nothing more than angering American Latinos and providing ready fodder to the leftist grist mill. Democrats have long accused Republicans of being xenophobic and racist. This policy plank fits right into that characterization. So, is Trump just a Clinton plant to prime the country for her election? I don’t know. If he’s not a plant, the fact is that he couldn’t play into the Democrats hands much better than he is if he were trying. So there’s that.