Birthright citizenship is back in the news after Donald Trump claimed it during a recent statement Meet the press interview that the United States is the only country with birthright citizenship — which it is obviously false—and that the concept itself is “ridiculous.”
“If anyone sets foot—just one foot, one foot, you don’t need two—on our land, congratulations, you’re now a citizen of the United States of America.” Trump said. “Yeah, we’ll finish it because it’s ridiculous.”
I’ve seen an alarming number of people, including law professors and pundits, downplay Trump’s efforts to end citizenship, arguing that the 14th Amendment says what it says and the only way to change it is through another constitutional amendment. That’s wrong when you consider that the Supreme Court is the one who interprets the Constitution, and we can’t trust the six conservative jammies on the Court to do anything other than what their Federal Society masters tell them.
But first, let’s see what exactly citizenship is.
Birthright citizenship is a right guaranteed by the Citizenship Clause of the 14th Amendment. The 14th Amendment 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 in which they reside.” Basically, the citizenship clause extends citizenship to anyone born on American soil.
It is based on the concept of ‘jus soli’, which means ‘of the soil’. This type of citizenship is not the same as other forms of citizenship, such as naturalization, which are is granted to immigrants who are legal permanent residents, or “jus sanguinis,” meaning “of the blood.”
Birthright citizenship is not a new concept. The framers of the 14th Amendment intended the Nationality Clause to replace the devastating 1857 Supreme Court opinion in Dred Scott vs. Sanfordin which the Court ruled that blacks could never be American citizens because of their race. The 14th Amendment corrected this troublesome analysis and extended citizenship to all people born on American soil, regardless of race.
And, in a case called United States v. Wong Kim Arkthe Supreme Court affirmed in 1898 that the 14th Amendment grants citizenship to anyone born on US soil. In that case, Ark was not re-entered the United States under the Chinese Exclusion Laws, which restricted immigration from China and barred Chinese immigrants from becoming naturalized citizens. The US government supported the readmission of Ark, who was born in San Francisco to Chinese citizens living in the US. Therefore, his parents were considered “subject to the jurisdiction” of the emperor of China. And on that basis, the US argued, so did Ark.
The Supreme Court categorically rejected this interpretation and in so doing, clarified the meaning of “subject to its jurisdiction”. The Court ruled that setting aside Native Americans and diplomats who enjoy sovereign immunity in the US, the 14th Amendment extends citizenship to everyone born here. Dot.
That should be the end of the debate, but rank anti-immigrant sentiment and growing panic among white nationalists and people who fear whites are being replaced by brown and black immigrants means attacks on citizenship are becoming more strong.
The crusade against citizenship is not new. In 1993, for example, then-Senator Harry Reid introduced legislation that would have ended citizenship before he came to his senses and apologized—repeatedly—because he lost his head over the matter.
Despite having some support, the movement to end citizenship never gathered much momentum in the 1990s.
Along with Trump came his friends. People like Trump’s lawyers John Eastman and Kenneth Chesebrough, two architects behind the “Stop Theft” movement, who have also signed up to Trump’s tortured view of citizenship. Cesebro once referred to birthright citizenship as a “remnant of feudalism” in a 2016 amicus brief for an Obama-era case called Tuaua v. United Statesthe Talking Points note was mentioned. In Tuawaa group of American Samoans sued the United States to force it to recognize birthright citizenship for American Samoans. (They ultimately lost — the Supreme Court declined to hear the case, upholding the lower court’s ruling that unincorporated territories are not within the United States for purposes of the Nationality Clause, and that therefore those born in American Samoa are not entitled birthright citizenship.)
Under normal circumstances—if we didn’t have the most conservative court in modern history—any attempt to end citizenship would be dead on arrival. Given the recent original tendency to consider whether certain rights are “deeply rooted in the history and tradition of this Nation” (Justice Samuel Alito’s justification for rejecting abortion rights in Dobbs v. Jackson Women’s Health Organization), birthright citizenship should be secure. Any original interpretation of the 14th Amendment would require that the right to citizenship remain intact.
But conservatives have advanced an argument that would overturn the 14th amendment while secretly trying to preserve this original interpretation.
Take Fifth Circuit Court of Appeals Judge James Ho, for example. Ho created an original defense of birthright citizenship a 2006 paper:
“There is growing interest in ending birthright citizenship for the children of aliens—especially the undocumented. According to a recent poll, 49 percent of Americans believe that a child of an illegal alien should not be entitled to American citizenship (41 percent disagree). Legal scholars, including Judge Richard Posner, argue that birthright citizenship for the children of aliens can be abolished by law. Members of the current Congress have introduced legislation and held hearings, following bipartisan efforts in the 1990s led by now-Senate Minority Leader Harry Reid and others.
“These proposals, however, raise serious constitutional issues. Birthday citizenship is guaranteed by the Fourteenth Amendment. This birthright is protected no less for the children of the undocumented than for the descendants of the Mayflower passengers.”
Cut to 2024 and Ho, now likely to be on Trump’s list of Supreme Court picks should Alito or Thomas withdraw, has changed his tune. He claims he still believes in that original interpretation, with one exception: The framers of the 14th Amendment did not intend it to apply during an invasion or in time of war. In one interview with law professor Josh Blackman for ReasonHo said:
“Birthday citizenship is supported by several Supreme Court opinions, both concurring and dissenting opinions involving Justices Scalia, Thomas, Alito, and others. But citizenship obviously does not apply in case of war or invasion. No one that I know of has ever argued that the children of alien invaders are entitled to birthright citizenship. And I can’t imagine what the legal argument would be for that.”
And that’s the ball game, isn’t it? Although efforts in the late 19th century to exclude Chinese immigrants from the US were based on the same racism and nativism that underpin current efforts to exclude and remove immigrants from Latin America, there is a difference in scale. In the 1880s, conservatives of the day complained about an immigrant population that included less than 1 percent of the total population. The current population of Latin America is about 19 percent of the US population.
Can’t you see Alito firing up his typewriter to think that the 14th Amendment was intended to address the citizenship of formerly enslaved Blacks, not the citizenship of the children of undocumented immigrants flooding our shores?
I sure can.
And even if the Supreme Court ultimately rules against Trump, chaos will ensue after Trump issues an executive order ending birthright citizenship. It would terrify immigrants—documented and undocumented alike. And that’s the point.
When it comes to the Trump administration, cruelty and chaos are always the order.
