Simone Lawson
The debate around ending birthright citizenship in the US has been a contentious issue, with President Trump attempting to rescind this constitutional right guaranteed by the 14th Amendment. This amendment states that all persons born or naturalized in the United States and subject to its jurisdiction are citizens. However, critics argue that the children of undocumented immigrants or those on temporary visas are not subject to US jurisdiction. While some suggest that a constitutional amendment is necessary to end birthright citizenship, others assert that the Supreme Court could achieve this by overruling its interpretation of the 14th Amendment. The Supreme Court's history of upholding birthright citizenship, combined with federal courts blocking Trump's order as blatantly unconstitutional, indicate that ending birthright citizenship without a constitutional amendment is highly unlikely.
| Characteristics | Values |
|---|---|
| Constitutional right | Guaranteed by the 14th Amendment |
| Who does it apply to? | Anyone born on U.S. soil |
| Who does it not apply to? | Children of diplomats and invading armies |
| Can it be changed? | Only through a constitutional amendment |
| What does it require? | A two-thirds vote in Congress and approval by 38 out of 50 states |
| Has it been changed before? | No, and no amendment has passed since 1992 |
| What are the implications of changing it? | Unconstitutional, impractical, expensive, and complicated |
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What You'll Learn
The Fourteenth Amendment
Despite this long-standing precedent, there have been recent attempts by the Trump administration to restrict birthright citizenship to children born to US citizens or lawful permanent residents. These efforts have been deemed "blatantly unconstitutional" by federal judges and blocked by multiple federal district courts. The Supreme Court has not ruled on the constitutionality of the executive order but has asked district courts to reconsider the scope of their injunctions.
Legal experts argue that the only way to end birthright citizenship would be through a constitutional amendment, which would require a two-thirds majority in Congress and approval by three-quarters of the states. Such a process is cumbersome and rare, with no amendment passing since 1992.
In conclusion, the Fourteenth Amendment is a cornerstone of American citizenship and civil rights, and any attempt to change or eliminate it would be irresponsible and unconstitutional, requiring a significant and unlikely amendment process.
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Supreme Court precedent
The Supreme Court precedent on birthright citizenship has been established for over a century. The Fourteenth Amendment, which states that "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," has been interpreted by the Supreme Court to include the children of undocumented immigrants or those with temporary visas.
In the Wong Kim Ark case, the Supreme Court held that persons such as Wong Kim Ark's parents and, thus, their children born in the United States were within the allegiance and protection of the United States and "subject to its jurisdiction" under the Citizenship Clause. This precedent still holds today and has been reaffirmed by the Supreme Court in subsequent cases, such as Plyler v. Doe, which affirmed that undocumented immigrants and their children are entitled to all the protections of the Fourteenth Amendment.
The Supreme Court's interpretation of the Fourteenth Amendment has been consistent in upholding birthright citizenship, even in the face of challenges. For example, in United States v. Wong Kim Ark, the Court interpreted the Citizenship Clause, providing that "all persons born or naturalized in the United States and subject to its jurisdiction are citizens." This interpretation has been further supported by immigration law experts, who argue that the president has no authority to change citizenship rules.
Despite the longstanding precedent, some have argued that the Supreme Court could overrule its interpretation of the Fourteenth Amendment and end birthright citizenship. However, this seems unlikely, as it would require overturning well-established case law and contradicting the plain language of the Fourteenth Amendment. Such a decision would also be highly controversial and face significant legal and political challenges.
In conclusion, the Supreme Court precedent on birthright citizenship is firmly established and rooted in the Fourteenth Amendment. While it is technically possible for the Court to overrule its precedent, it is highly unlikely to do so, given the significant legal, political, and societal implications such a decision would entail.
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Citizenship Clause
The Citizenship Clause of the Fourteenth Amendment states that:
> "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 Citizenship Clause was added to the Constitution in 1868, after the Civil War, to protect the legal and civil rights of Black Americans. Before the Fourteenth Amendment, citizenship was denied to enslaved Black people and free Black Americans. The Supreme Court's infamous Dred Scott v. Sandford decision in 1857 ruled that no person of African descent could be a citizen of the United States. The Civil War was fought in part to end this state of affairs, and the Fourteenth Amendment repudiated the Dred Scott decision.
The Citizenship Clause has been interpreted by the Supreme Court to mean that birthright citizenship is guaranteed to anyone born on U.S. soil, regardless of their parents' citizenship or legal status. The Court has held that persons born in the United States are "within the allegiance and protection of the United States, and subject to its jurisdiction under the Citizenship Clause, 'so long as they are permitted by the United States to reside here'". However, the Court has also recognized certain exceptions, such as the children of foreign diplomats, who are not considered subject to the nation's jurisdiction and therefore do not automatically attain citizenship by birth.
The Citizenship Clause has been under recent scrutiny, with some arguing that it should not extend to the children of unauthorized immigrants or those in the country on temporary visas. However, legal experts and federal judges have called these arguments "crazy" and "dishonest", and multiple federal courts have blocked attempts by the Trump administration to rescind birthright citizenship, calling such attempts "blatantly unconstitutional". The Supreme Court has not ruled on the constitutionality of these attempts, but it has asked lower courts to reconsider the scope of their injunctions.
To end birthright citizenship without a constitutional amendment would require the Supreme Court to overrule its longstanding interpretation of the Fourteenth Amendment, which legal experts consider unlikely. The only other way to change birthright citizenship would be through a constitutional amendment, which would require a two-thirds vote in Congress and approval by three-quarters of the states.
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Children of undocumented immigrants
The children of undocumented immigrants are at the heart of the debate around birthright citizenship in the United States. The Fourteenth Amendment states that "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 key phrase here is "subject to the jurisdiction thereof". The Trump administration argued that this phrase does not apply to the children of undocumented immigrants, and therefore they are not automatically granted citizenship. However, this interpretation has been rejected by legal experts and federal judges, who point out that the Supreme Court has already interpreted the Citizenship Clause of the Fourteenth Amendment in the Wong Kim Ark case in 1898. In this case, the Court held that persons born in the United States to parents with lawful permission to reside in the country were subject to its jurisdiction and thus entitled to citizenship. Furthermore, federal, state, and local governments recognize undocumented immigrants as "subject to the jurisdiction" of US laws, holding them accountable to civil and criminal statutes.
The children of undocumented immigrants are particularly vulnerable to exploitation and face significant challenges if they are not granted birthright citizenship. Without citizenship, they would be denied the civil rights and protections afforded to other Americans, including the right to vote, equal access, and protection against job discrimination. They may also struggle to access education, healthcare, and other social services, and could be subject to deportation.
The only way to end birthright citizenship would be through a constitutional amendment, which would require a two-thirds majority in Congress and approval from three-quarters of the states. This process is designed to be difficult, and no amendment has been passed since 1992. Given the strong policy arguments in favour of retaining birthright citizenship, it is unlikely that such an amendment would be passed.
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Executive orders
The Fourteenth Amendment of the US Constitution established birthright citizenship, stating that "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." This amendment was enacted to protect Black Americans and ensure their legal and civil rights after the Civil War.
Some US presidents, such as Donald Trump, have attempted to limit or end birthright citizenship through executive orders, arguing that the children of undocumented immigrants or those on temporary visas are not "subject to the jurisdiction" of the US and, therefore, the 14th Amendment does not apply to them. However, these attempts have been blocked by federal courts and deemed "blatantly unconstitutional."
Legal experts and immigration scholars affirm that the president does not have the authority to unilaterally change citizenship rules. The Supreme Court has interpreted the Citizenship Clause of the Fourteenth Amendment, and any changes to birthright citizenship would require a constitutional amendment, which is a challenging and rare process.
The Supreme Court's precedent in the Wong Kim Ark case and others upholds birthright citizenship and contradicts the arguments presented in the executive orders. The Court has consistently interpreted the 14th Amendment to include birthright citizenship, and federal, state, and local governments recognize undocumented immigrants as "subject to the jurisdiction" of US laws.
In conclusion, while there have been attempts to end birthright citizenship through executive orders, these orders are not legally valid, and the only way to make such a significant change would be through a constitutional amendment, which is a complex and highly unlikely process.
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Frequently asked questions
The Fourteenth Amendment states that: "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 history of birthright citizenship in the US is rooted in the aftermath of the Civil War. Before the Fourteenth Amendment was ratified, Black people, both enslaved and free, were denied citizenship. The Civil War was fought to end this racialized class system, and the Fourteenth Amendment was passed to grant legal and civil rights to Black Americans.
No, the only way to end birthright citizenship would be through a constitutional amendment. While some presidents, such as Donald Trump, have attempted to restrict birthright citizenship through executive orders, these orders have been blocked by federal courts as unconstitutional.
The process to amend the Constitution is cumbersome and rarely successful. The proposed amendment would need to pass Congress by a two-thirds vote and then be approved by three-quarters of the states (38 out of 50). No amendment has passed since 1992.
