This week the President declared his intention to end “birthright citizenship” via executive order. As birthright citizenship is conferred via the Constitution, good luck with that. Leaving alone the President’s intentions and legal knowledge, the last Supreme Court case addressing birthright citizenship is instructive on the concept itself.

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 law; nor deny to any person within its jurisdiction the equal protection of the laws. – Section 1, Fourteenth Amendment

The first sentence of the first section of the Fourteenth Amendment, enacted post-Civil War, has created millions of new United States citizens through the concept known as “birthright citizenship.” Essentially, anybody born in the United States automatically becomes a United States citizen. This concept was last addressed by the Supreme Court in 1898, in United States v. Wong Kim Ark (169 US 649).  Wong Kim Ark concerned a man born in San Francisco to parents who were Chinese citizens but lawful legal residents working in the United States.  In 1890, Wong Kim Ark traveled to China and returned to the U.S. without issue. In November 1894, he again visited China but upon returning to the U.S. in August 1895, he was detained by Customs and denied entry on the basis of not being an American citizen. He challenged the refusal to recognize his birthright claim to US citizenship, and the case made its way to the Supreme Court. This was the first case to consider the question of citizenship for the U.S. born children of legal aliens. By a 6-2 margin, the Court held that Wong Kim Ark acquired U.S. citizenship at birth.

This opinion is quite lengthy, opening with a detailed history of acquiring citizenship in early America and in England, with a heavy focus on English common law and the common law tradition of granting citizenship. It’s quite dry, but covers a lot of history. Before addressing the Fourteenth Amendment, the Court concludes its historical review with this summary:

Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States. Id. at 674-75.

Moving on to the text of the Fourteenth Amendment, the Court lays it down:

As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States. But the opening words, “All persons born,” are general, not to say universal, restricted only by place and jurisdiction, and not by color or race — as was clearly recognized in all the opinions delivered in The Slaughterhouse Cases, above cited. Id. at 676 (citations omitted).

The Court did not hold the birthright citizenship clause to be unlimited. There were still some circumstances where citizenship was denied:

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State — both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Id. at 682.

With respect to the phrase “subject to the jurisdiction thereof,” the Court turned to The Exchange v. McFaddon, 11 U.S. 116 (1812), summarizing: “In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied…” Id. at 686. In other words, one located in the United States is subject to the jurisdiction of the United States, unless the United States has decided otherwise (such as granting legal immunity to diplomats).

The Court then referenced the Civil Rights Act of 1866, the precursor to the Fourteenth Amendment:

By the Civil Rights Act of 1866, “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,” were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, “not subject to any foreign power,” were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright, or, for instance, for the first time in our history, to deny the right of citizenship to native-born children of foreign white parents not in the diplomatic service of their own country nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the Civil Rights Act, “not subject to any foreign power,” gave way, in the Fourteenth Amendment of the Constitution, to the affirmative words, “subject to the jurisdiction of the United States.” Id. at 688.

In case it still was not clear, the Court reiterated:

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. Id. at 693.

The Court also noted that non-citizens present in the United States are both under the U.S.’s protection and subject to its laws:

In Yick Wo v. Hopkins, the decision was that an ordinance of the city of San Francisco, regulating a certain business, and which, as executed by the board of supervisors, made an arbitrary discrimination between natives of China, still subjects of the Emperor of China, but domiciled in the United States, and all other persons was contrary to the Fourteenth Amendment of the Constitution. Mr. Justice Matthews, in delivering the opinion of the Court, said:

“The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the Emperor of China. . . . The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. …” Id. at 694-95.

The Court concludes:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. Id. at 705.

My goal here was to provide the highlights from the last Supreme Court case that addressed birthright citizenship, as the Court provided a comprehensive history of the concept as it predated the United States and through the then-present day. The President has stated his intention to eliminate birthright citizenship via executive order, which he cannot do. Should he actually try, it will be challenged in court. The only possible argument I can see is that Wong Kim Ark concerned legal residents, while the President will likely target the children of undocumented immigrants. For the historical and legal reasons set forth in Wong Kim Ark, this argument should fail. For the overall benefits of birthright citizenship, this argument should fail miserably. My pal wrote a good piece on the topic a few years ago.

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