Threats to Overturn Birthright Citizenship

Nov 23, 2018 | Immigration, Politics


President Trump has recently spoken publicly about his skepticism over the United States’ Birthright Citizenship Policy. The discussion over the revocation of Birthright Citizenship has emerged as a potential strategy to lower the number of individuals in the United States as a result of immigration and to prevent the availability of citizenship to their children. President Trump has threatened to sign an Executive Order ending a 152-year-old amendment to the U.S. Constitution which has serious implications for Americans- of birth and naturalization.

The right of U.S. citizenship by birth was established with the 14th Amendment in 1866.

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 wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of the law, nor deny to any person within its jurisdiction the equal protection of the laws.”

The context out of which this amendment emerged is crucial in understanding the importance of its maintenance. Following the end of the Civil War and the emancipation of slaves with the 13th Amendment, the 14th Amendment sought to include newly freed slaves and their children into the citizenry of the United States. It affirmed their rights and privileges under the law. The context of this amendment to the Constitution was inclusion. Its purpose was to fill a gap left in the definition of who is American as crafted by the founding fathers.

The 14th Amendment and its applicability were scrutinized by racial prejudice and bias against an individual’s country of origin. This led to the Supreme Court hearing of U.S. vs. Wong Kim Ark. In this case, Wong Kim Ark was born to Chinese immigrant parents on U.S. soil. He spent his entire life as an American citizen living in California. Upon returning from a visit to China, U.S. customs agents denied his re-entry into the United States and his claim of citizenship based on the fact that the Chinese Exclusionary Act was in effect. This prohibited Chinese immigrants from becoming naturalized U.S. citizens. The Supreme Court held that Wong Kim Ark was a U.S. citizen by birth and was entitled to the rights and privileges of any and all other U.S. citizens.

The decision maintained that any immigration law discriminating against one’s country of origin did not apply to children born on U.S. soil. The Court referenced an 1853 Pamphlet published in Philadelphia, stating: “The right of citizenship… is incident to birth in the country… The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” Your parents’ country of origin does not affect your status as an American.

The decision of the court and the legal principle from which the 14th Amendment draws is jus soli, meaning right of soil. The origin of jus soli in U.S. citizenship law informally borrowed from English common law and was the primary method for determining who was American before the Civil War. Slaves were not given citizenship rights until after emancipation and the 14th Amendment. In an 1844 New York case, the court held that a child born to foreign nationals visiting or only temporarily residing in the United States was still entitled to U.S. citizenship. Though formal citizenship law did not appear as an amendment to the Constitution until 1866, there is clear precedent for the reliance on and upholding of jus soli in determining citizenship and American identity before.

This stands in contrast to the principle of jus sanguinis, meaning right of blood, that originated in Europe in response to shifting borders and the displacement of citizens from origin states. Following the redrawing of geopolitical boundaries in Europe throughout the 19th and 20th centuries, German leadership proposed a policy of determining national identity and belonging through ancestry rather than by location. Jus Sanguinis in its origin was proposed as a method for reuniting separated families and granting citizenship rights to children born abroad to citizens. Though its basis in nationalist sentiment would later be used for oppression and genocide, in its origin, jus sanguinis was intended to be inclusive.

Jus Soli is primarily used in the Western Hemisphere and is the primary method for granting citizenship in a little over 30 countries. Many states’ citizenship law encompasses elements of both jus soli and jus sanguinis.

In examining the place for Birthright Citizenship in U.S.policy, there is no definitive right or wrong, especially when other developed countries’ policies are examined. Many European states rely heavily on narrowly defined Jus Sanguinis and still other developed, comparable countries rely on a restricted definition of Jus Soli. There is a strong argument to be made on behalf of both principles.

In moving forward in the debate over Birthright Citizenship, a few suggestions should be made:

  1. The debate over limited citizenship, naturalization, and immigration controls has sociological, political and economic components. It would be irresponsible to ignore data essential to the decision making process beyond demographic data. The economic cost and benefits of awarding the nearly 250,000 babies born to immigrant parents in 2016, (the last year such data can be accessed).
  2. Birthright Citizenship is not an all-or-nothing policy and should not be treated as such. The adjustment of the policy to have more stringent restrictions could be a meaningful step in meeting the goals of and maintaining the values of the American people. Many comparable, developed countries have restricted policies based on jus soli. Congressman Steve King, representing Iowa’s 4th Congressional District, introduced a Bill in the House in January 2017 that sought to address the issue of Birthright Citizenship, seemingly combining principles of jus sanguinis and jus soli. The amendment would require one parent to have citizenship or be a legal resident alien for the child, born on American soil, to be considered a U.S. citizen. The language of the Bill is subtly exclusionary. All 11 of the Congressmen named on the Bill in its introduction were members of the Republican party (two of the congressmen were defeated in reelection campaigns, one resigned following accusations of sexual harassment).
  3. When changes are proposed to such a fundamental policy, the American people should have an opportunity to engage with the system and voice their support or opposition. Recent polls have indicated 65% of respondents support the continuation of Birthright citizenship, a number that has actually increased since Trump took office. An Executive Order may be the quickest way to shift policy, it is not the most effective, or legal, channel for amending the Constitution. Legal scholars from around the country have stepped forward offering insight into potential outcomes of such an Executive Order.

In conclusion, the debate over Birthright Citizenship speaks to the core principle of who is American and who is not. While the United States has long been a country of immigration, this is not the first time the question over birthright citizenship has emerged and it will most likely not be the last. As Americans grapple with defining who is a citizen and what it means to be American, there is value in the recollection of our core values.

E Pluribus Unum, a statement that served as the motto in the founding of the United States and appears on the official seal not only of the President but on the seal of the Vice President, Congress, and the Supreme Court. E Pluribus Unum serves as the motto of the U.S. and is present in every office charged with the duty of governing the country. What does this Latin phrase mean exactly?

“Out of many, one.”

The union of varying peoples is as integral to and symbolic of the American identity as the bald eagle.  

The best outcome of the debate is the involvement of the elected officials comprising our legislature and their careful consideration of the extensive body of research on migration, citizenship, and legal precedent that exists around this issue.

The question of belonging and membership in the American system will go unanswered until then.

Photo Source: The Atlantic