Birthright Citizenship: The Argument Against the Modern Interpretation

Why Trump's EO is constitutionally correct.

The news is full of headlines focused on Donald Trump’s Executive Order on the proper interpretation of the Fourteenth Amendment’s Birthright Citizenship clause. Trump is ending the practice of automatically granting citizenship to every U.S.-born child regardless of the legal status of his or her parents. A number of states have already sued, and, today, a federal court issued a temporary nationwide injunction barring enforcement of the Executive Order. Although many people think the Fourteenth Amendment is black and white, many constitutional scholars and lawyers believe that Trump’s Executive Order is lawful and necessary. Dr. John Eastman—a well-respected constitutional law professor and scholar—has articulated many times the clear argument against Birthright Citizenship as it is commonly understood (and practiced). His argument is straight forward, it rests on history and precedent, and it avoids the absurd result we have today.

The Citizenship Clause of the Fourteenth 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.” The modern era has interpreted this to mean that anyone born on U.S. soil is automatically a citizen of our great country. But Eastman and many others argue differently.

The first problem is one of basic statutory interpretation—redundancy. If “subject to the jurisdiction thereof” simply means, as common parlance accepts, that everyone present in the United States is subject to that nation’s law/jurisdiction, the clause is rendered redundant, because the immediately preceding fragment—"born in the United States”—covers that base. An interpretation of a legal text that creates a redundancy is always disfavored. The additional constitutional text (“and subject to the jurisdiction thereof”) must mean something more.

Eastman and others argue that “subject to the jurisdiction thereof” should be interpreted to mean one who owes sole allegiance to the United States. This understanding is confirmed by one of the primary drafters of the clause, Sen. Lyman Trumbull, who explained to fellow senators during debates that “subject to the jurisdiction” meant subject to “complete” jurisdiction—“[n]ot owing allegiance to anybody else.”

Initially, the Supreme Court agreed. Although dicta, both the majority and the dissent in the Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873), agreed that the Fourteenth Amendment’s “subject to the jurisdiction” clause excluded the children of citizens and subjects of foreign states who just happen to be born in the United States.

The Supreme Court confirmed this understanding in Elk v. Wilkins, 112 U.S. 94 (1884), when it denied birthright citizenship to an Indian born on a reservation who claimed citizenship as an adult. The Court held that the claim of birthright required him not to be “subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”

Astoundingly, the Supreme Court completely reversed course in United States v. Wong Kim Ark, 169 U.S. 649 (1898). In that case, a Chinese man born to permanent legal residents of the United States (and who were barred by federal statute from ever obtaining full citizenship) claimed birthright citizenship, and the High Court held Wong Kim Ark qualified under the Fourteenth Amendment’s Citizenship Clause.

Wong Kim Ark marked a reversal in the court’s interpretation of the Citizenship Clause, and it has wreaked havoc on the American immigration system and seriously eroded every American’s status as citizen. As Eastman points out, the gloss placed on Wong Kim Ark is much broader than even its holding, which addressed the child of legal permanent residents. Birthright citizenship should, at the least, be limited to children of parents here legally. The situation we have today is absurd and untenable; it will destroy our country if not reversed.

You can Dr. Eastman’s full argument here, which includes a more fulsome discussion of the original understanding of the Citizenship Clause.