I have spent more class time discussing the barrage of executive orders and pardons from both the outgoing and incoming presidents this week. As a federal judge has blocked President Trump’s executive order to change birthright citizenship, that topic seems to be the best place to begin. I should mention that I struggle with the legality of most executive orders, but that argument will have to wait.
The discussion of birthright citizenship centers on the 14th Amendment to the Constitution. The clause under debate 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.” While it seems simple enough, it is complicated.
The clause “and subject to jurisdiction thereof” seems to trip up everyone. What does that mean? Well, it’s open to interpretation. The problem and the brilliance of the Constitution is its vagueness. It must be. If the Constitution was packed full of specifics, it would have been scrapped years ago. True, a few things are specified: the president must be 35 years old to be elected, but it also says the president must be compensated, without giving a figure. It is up to Congress to determined that along the way.
When it comes to citizenship, the original Constitution is silent. Citizenship requirements, determined by the courts and Congress, have been changed many times throughout our nation’s history.
The first citizenship law was passed in 1790 and said, “Be it enacted…That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States.”
Some later examples are the Alien and Sedition Acts, passed in 1789 during John Adams’ administration, which changed the length of time one must live in America to 14 years before applying for citizenship. In the 1857 Dred Scott case, courts basically said slaves were not citizens. A few years later in 1868, we get the 14th Amendment, which changed the earlier legal precedent on citizenship. In other words, citizenship laws have been fluid. Even with the acceptance of the 14th Amendment, later cases were required to understand exactly what the amendment meant. In 1898, in United States v. Wong Kim Ark, the courts said a child born to lawful immigrant parents was a citizen. Note “lawful.” Whether we agree with what the president says about birthright citizenship, historically speaking, those laws are still subject to change.
Back to the difficult clause, “and subject to the jurisdiction thereof.” Historically, this was always seen as addressing two main groups. The first were diplomats. If children of foreign diplomats were born in America, they were not granted citizenship because they were subjects of a different jurisdiction (country). The second group were Native Americans for the same reasons. In 1868, Indians were subjects of sovereign tribes, not the United States, and so their children were not given citizenship by being born in America. (Note that children of today’s diplomats are still not granted citizenship, but Native American children are.) Citizenship laws have changed even since the 14th Amendment.
If the U.S. Supreme Court takes on this case — and I believe they will — much of their decision will be based on legal precedent, but they must also understand the intent of the law they are interpreting.
Intent is often difficult to ascertain, but it is worth noting the intent of the 14th Amendment. The 13th, 14th and 15th amendments are considered the Civil War or Reconstruction amendments because they all came at the end of or right after the Civil War. The intent of these amendments seems clear. The Republican-controlled Congress was trying to protect the newly freed slave population and fix the lack of official citizenship requirements in the Constitution. The 13th Amendment outlawed slavery, the 14th defined citizenship, and the 15th protected the freedmen’s right to vote. Congress wanted to make sure freed men could not lose their rights because they were once slaves or because of their color. The mere fact that they were born in America meant they were citizens with all the rights that go with citizenship.
It is impossible to know is if those members of Congress ever intended the amendment to apply to a baby of an illegal alien. An argument can be made that illegal aliens are not subject to the jurisdiction thereof, but instead of subjects and citizens of the nations from which they come and so their offspring are not covered under the 14th Amendment. It is also impossible to know if the amendments’ authors intended its use to skirt immigration laws as there were none. They never could have foreseen thousands of people swarming across our nation’s southern border when they created this new rule.
An important takeaway is that because our citizenship requirements and immigration laws have changed many times throughout our nation’s history, these debates are not new. It also seems believable that Congress did not write the 14th Amendment with illegal immigration in mind. I am not calling for birthright citizenship to end, but it is worth examining.
History has shown our nation has a precedent for change. However, I believe the decision on birthright citizenship needs to happen in the Court, and Congress — not the President — needs to seriously reform our nation’s immigration laws.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com.
