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“The Supreme Court will hear oral arguments early next year in the challenge to President Donald Trump’s Jan. 20 executive order seeking to end birthright citizenship – the guarantee of citizenship to almost everyone born in the United States. Under the order, which has never gone into effect, people born in the United States would not be automatically entitled to citizenship if their parents are in this country either illegally or temporarily…
“The United States is one of roughly 30 countries, including Canada and Mexico, that offer automatic citizenship to nearly everyone born there. Birthright citizenship was added to the Constitution in 1868 when the 14th Amendment was adopted following the Civil War. The section of that amendment known as the citizenship clause provides that ‘[a]ll 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.’” SCOTUSblog
The left urges the Court to uphold birthright citizenship.
“Birthright citizenship is not some misty, novel concept or expansion of ill-defined rights. It is the hard promise, in plain language, of the Fourteenth Amendment, which gave citizenship to previously enslaved Black Americans but was recognized from the beginning as having a broader effect… The opponents of birthright citizenship hang their arguments, such as they are, on the words ‘subject to the jurisdiction thereof.’…
“In 1898, which was only thirty years after the amendment was ratified, the Supreme Court ruled definitively on the meaning of that phrase in the case of Wong Kim Ark, a man born in California to Chinese immigrants who were precluded from becoming citizens by the Chinese Exclusion Act. The Court ruled that the only babies born in the U.S. but not ‘subject’ to its jurisdiction in this sense were those born to ‘foreign sovereigns’ or diplomats…
“Wong’s was a landmark case, not an obscure one, and the Court referred back to it in the decades that followed; its majority opinion in a 1957 case, for example, notes that a baby born to parents in the United States illegally ‘is, of course, an American citizen by birth.’ Legislators shared that understanding of birthright citizenship when Congress incorporated the Fourteenth Amendment’s language into federal law, in 1940 and 1952.”
Amy Davidson Sorkin, New Yorker
“Every lower court ruled against the government in this case, and a bunch of different lawsuits had been filed… It is, frankly, nuts that we are here talking about the Supreme Court deciding an issue that was resolved after the Civil War and resolved again at the end of the 19th century by an otherwise pretty racist Supreme Court, which said even we have to acknowledge that the children of immigrants get birthright citizenship.”
Mark Joseph Stern, Slate
“From the moment the 14th Amendment was written, it marked a decisive break with the Old World’s hierarchies — a rejection of the idea that rights flow from bloodlines. Jus soli is not some quirky American anomaly. It is the norm throughout the Western Hemisphere, embraced by nearly every nation in the New World as the surest way to bind newcomers and their children into a common civic project…
“Birthright citizenship expresses a core American value: Children born on American soil begin life as equals, not as inheritors of their parents’ legal disadvantages. Civic identity here is not dictated by ancestry or caste. To rip that principle out of the Constitution would warp the meaning of American citizenship into something narrower, meaner, and unworthy of a confident nation. Let the Supreme Court say so.”
Jeff Jacoby, Boston Globe
The right is divided.
The right is divided.
“As the 18th-century English jurist William Blackstone explained: ‘the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.’ Upon independence, the American states incorporated the British rule into their own laws. Congress did not draft the 14th Amendment to change this practice, but to affirm it in the face of the most grievous travesty in American constitutional history: slavery…
“Courts have never questioned this understanding of the 14th Amendment. In United States v. Wong Kim Ark (1898), the Supreme Court upheld the citizenship of a child born in San Francisco to Chinese parents. The Chinese Exclusion Acts barred the parents from citizenship, but the government could not deny citizenship to the child…
“The court rejected the claim that aliens are not within ‘the jurisdiction’ of the United States. Critics respond that Wong Kim Ark does not apply to illegal aliens because the parents were in the United States legally. But at the time, the federal government had yet to pass comprehensive immigration laws that distinguished between legal and illegal aliens. The parents’ legal status made no difference.”
John Yoo, Fox News
Others argue, “Wong Kim Ark did more than just misinterpret the 14th Amendment. It effectively rewrote the citizenship clause of the 14th Amendment according to English feudal principles that the founders — and framers — rejected… [Justice Horace] Gray based his entire opinion on the idea that the 14th Amendment must be understood in terms of English common law…
“Gray substituted English monarchical doctrine for the framers’ republican understanding of law and their own intentions. The dissent in Wong Kim Ark also observed that such a reliance on common law was incorrect: ‘[W]hen the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the Colonies in derogation of the principles on which the new government was founded was abrogated,’ the minority argued.”
Brianna Lyman, The Federalist
“Each year, tens of thousands of children are born in the U.S. to illegal immigrants, immediately granting them citizenship. These children, in turn, become conduits for further immigration, as their parents and extended family members use their status as leverage to obtain legal residency… Citizenship should be a privilege granted to those who have demonstrated commitment and allegiance to the nation and their descendants, not an accident or, even worse, deliberate fraud.”
Rod Martin, Substack
