President Trump and Birthright Citizenship

On the first day of his return to the presidency, Donald Trump promulgated an executive order under the title “Protecting the Meaning and Value of American Citizenship.” It proclaimed that, beginning thirty days later, the policy of the government would be to deny citizenship to any child born thereafter in the United States whose mother was “unlawfully present” in the country, or present on a “lawful but temporary” basis (such as on a student or tourist visa), and whose father was not a U.S. citizen or permanent resident at the time.

As with numerous other executive actions of the new administration, this order was immediately challenged in federal court, and three district courts—in Maryland, Washington State, and New Hampshire—have enjoined it nationwide. In response, the administration has petitioned the Supreme Court to lift these injunctions (or perhaps to limit their geographic reach) while litigation in the lower courts proceeds.

Whatever the high court says in the near term on these injunctions, the basic issue will take longer to resolve. The immediate backlash to the president’s executive order reflects the dominant view of jurists and scholars that birthright citizenship extends to everyone born in the United States, with narrow exceptions—and that those exceptions do not include immigrants of any kind. Whether their parents are here lawfully or unlawfully, temporarily or permanently, children born here have long been considered automatically American citizens: this is the default position of American law. Is the Trump administration’s effort to alter that default position a reasonable one—perhaps even a salutary corrective?

To answer that question requires a historical excursion that begins with the Fourteenth Amendment, adopted in 1868—but then moves forward and backward from that landmark. The first sentence of the amendment, crafted in the Congress (in this case, in the Senate) in the spring of 1866, reads as follows: “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.” Plainly, at least from July 9, 1868 onward, when the amendment took effect, some people born in the United States have been citizens just by virtue of that fact. But who, exactly? Only those “subject to the jurisdiction” of the United States. And in these few words all the controversy is centered.

Fast-forward thirty years. In 1898 the Supreme Court decided United States v. Wong Kim Ark, a case concerning a man born to Chinese immigrants in San Francisco in 1873 who, upon returning from a visit to China (not his first such trip) in 1895, was denied re-entry into the country on grounds that he was not a citizen. His parents, denied the opportunity to become citizens thanks to federal naturalization law’s exclusion of Asians, had returned to China. Under the Chinese Exclusion Act of 1882, further entry of alien Chinese into the country was almost completely closed down, and Wong was a deportable alien if he was not a citizen by virtue of his American birth. But the Supreme Court, by a 6–2 majority, said that Wong’s birth here, even to parents who were themselves ineligible for naturalization, made him a citizen.

The Wong Kim Ark decision settled, in the American judiciary, the question of the citizenship of the children born in the U.S. to immigrant parents who are not (or not yet) naturalized. But the precise question settled concerned the offspring of those immigrants who were themselves residing here legally, and entitled to stay—as Wong’s parents were. No Supreme Court decision in the last 127 years has directly addressed the question whether the offspring of aliens present in the country illegally, or legally but with no presumptive right to stay, are American citizens by birth on our soil. The general presumption in American courts and executive agencies since Wong’s case has been that the answer is “Yes.” But President Trump’s executive order addresses precisely that question, and answers “No.” The children born here of foreign tourists, of sojourning international students, of guest workers, or of persons who entered the country unlawfully and are therefore subject to deportation, are not citizens, says the administration.

(A side issue not to my purpose here, yet vitally important in its own right, is whether the president, even if he is right about the Constitution, can accomplish this remaking of American citizenship law on his own authority, or whether what is needed is an act of Congress to the same effect. Even some of the supporters of the president’s policy preference, and his reading of the Constitution, have in the past said that legislation is necessary. The rest of this essay will sidestep this question of institutional authority, and treat it as all one whether the view of the Constitution’s definition of citizenship expressed in the president’s executive order were embodied in an act of Congress or not.)

We shall return to Wong Kim Ark, for the opinions in the case—by Justice Horace Gray for the Court, and by Chief Justice Melville Fuller in dissent—represent perhaps the best expositions available of the opposing views on the broader question as well as the narrower one in Wong’s case. But for now let us rewind to the Fourteenth Amendment itself. Why does the amendment open with a sentence about who shall be a citizen? And was this intended to be a change in the Constitution’s meaning on this question, or a restoration of it?

Framing the Citizenship Clause

The framers of the Fourteenth Amendment decided to set the terms of American citizenship for two reasons. First, it had never been done before. There are numerous references in the original Constitution to “citizens,” as for example in the qualifications to legislative and executive office (the president must be a “natural born Citizen,” for instance). And Congress is given power to “establish an uniform Rule of Naturalization” to make citizens of immigrants. But on how one comes to be a citizen aside from being a naturalized immigrant, the Constitution is silent.

Second, this very silence had been the occasion for mischief in the 1857 case of Dred Scott v. Sandford, in which the Supreme Court had not only invalidated a legislative prohibition on slavery’s extension into large western territories; it had also held that no free person of African descent, even if born free on American soil (let alone emancipated), was or could ever be a citizen. Hence the immediate purpose of the Fourteenth Amendment’s citizenship clause was to reverse this holding, which the amendment’s framers thought an obvious travesty. That is, they did not believe that Dred Scott had said a true but regrettable thing about who was or could be a citizen; they believed the ruling had said a false thing, and that the constitutional amendment they wrote would restore the status quo ante 1857.

The Thirty-ninth Congress’s first crack at addressing the citizenship question had come in the Civil Rights Act of 1866, passed earlier that year over the veto of President Andrew Johnson. Its language, saying “[t]hat all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States,” had been more cumbersome and imprecise, and moreover had been thought to lack a firm ground in any constitutional authority for such legislation. Hence the effort that spring to state the matter unequivocally in a constitutional amendment. Senator Jacob Howard of Michigan, in crafting the amendment’s citizenship clause, substituted “subject to the jurisdiction thereof” for the baggier “not subject to any foreign power, excluding Indians not taxed.” Some of his colleagues did not at first perceive that his more economical language did all the work of the earlier legislation’s language more precisely. Most could see that subject to American jurisdiction encompassed not being subject to another country’s, but some wanted the clause about “Indians not taxed” recapitulated. Howard explained that it was unnecessary, because his language accomplished that object as well—and did it more succinctly and exactly. In both the act and the amendment, Congress proceeded on the same understanding, but it expressed itself poorly in the act, and much better in the amendment. But what understanding is that?

The matter of the Indians, and of “any foreign power,” brings us to the heart of the issue—and our current controversy. What does it mean to be born in the United States and “subject to the jurisdiction thereof”? More to the point, who would be excluded from citizenship, as not “subject to [United States] jurisdiction,” despite being born on American soil?

In the congressional debates on Howard’s citizenship clause, two classes of persons were consistently identified as not “subject to the jurisdiction” of the United States, though born within its territory. The first class was the American Indians who were still governed by their tribes, usually inhabiting tribal lands, and whose relationship with the United States was governed by treaties (a practice later supplanted by direct congressional legislation under the commerce clause). The Indian tribes had long been considered (as Chief Justice John Marshall called them in 1831) “domestic dependent nations”— sovereign as to their own populations, no part of the American polity (not counted in the census, for instance, as even aliens were), but contained within the boundaries of the United States and having no status as foreign nations in international law. An Indian so situated would be born in but not of the United States. (Congress, by legislation, made all Indians American citizens in 1924.)

So too the members of the second exceptional class of persons born on American soil, the children of accredited diplomats representing other nations. At birth, such a person was cloaked in the sovereignty of his parent’s country, and was no part of the American polity. And a third class of persons who might be born in but not of the United States, though more hypothetical than real, would be the offspring of invading foreign troops inhabiting American soil. Each of these groups—the children of tribally governed Indians, of diplomats, and of invading enemies—was understood to be embraced in the sovereign bosom of some community other than our own.

Not so the child of the immigrant, or for that matter of any sojourner in America who was here to work, to study, or to travel. No cloak of foreign sovereignty enveloped these children and set them apart from the American community—whatever allegiance their parents might retain. The child of the alien, like the alien parents themselves, was fully “subject to the jurisdiction” of the United States—completely governed by our laws, and answerable to American political authority. This much is pretty plain from the debates of 1866 (though some advocates are determined to read them otherwise).

Would the answer be different for the children of aliens present on our soil unlawfully? In 1866, there was essentially no one fitting this description, for the Chinese Exclusion Act passed sixteen years later was the first federal legislation—other than the prohibition of the slave trade—that restricted immigrant entry into the country. So we cannot say that the Thirty-ninth Congress had “illegal aliens” at the back of its collective mind in drafting the “subject to the jurisdiction” phrasing of the citizenship clause. Furthermore, to fit the child of any immigrant, lawful or not, into the exceptions contemplated by that qualification would require us to substantially change in retrospect what was understood at the time by “jurisdiction.” We would have to take “subject to the jurisdiction thereof” to really mean, not “answerable to the authority of its laws,” but “inheriting parental allegiance thereto.” And this is not how American law—from the founding onward—had ever treated the born-in-America children of immigrants.

Background Principles of Citizenship Law

The dueling opinions of Gray and Fuller in the Wong Kim Ark case laid out the basic alternative understandings of America’s unlegislated background principles on citizenship since the founding, which the Fourteenth Amendment had merely restated and affirmed. As Justice Gray said for the Court, Americans had a received inheritance of the English common law, which since at least 1608 had held that every person born on sovereign British soil (children of diplomats and enemies, again, excepted) was a subject of the Crown, owing allegiance to the monarch for life. This was known as the jus soli—“right of the soil”—principle, and Gray regarded it as the true original principle of American citizenship law, which the amendment had restored.  

Jus soli taken in full meant, as of the eighteenth century, that a British subject had no right to expatriate himself—breaking his allegiance to the Crown—by emigrating to and becoming naturalized in another country. But a “no expatriation” rule did not sit well with a people who had declared independence from the British crown and “expatriated” themselves en masse. So a modified form of the principle, gradually dropping the no-expatriation or lifelong-allegiance element of the common law, became the American norm. Such partial adoption of the common law, with modifications, was not a strange thing in the American experience; commentators frequently remarked that even in the colonial era the common law was (as Justice Joseph Story put it) “our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation” (my emphasis).

Chief Justice Fuller’s dissent in Wong’s case, on the other hand, rejected the idea of modification in the inherited common law principle, insisting that at the Revolution the jus soli norm was simply discarded in toto. If Americans are citizens simply because they were born here, said Fuller, then the whole “feudal” package of the ancient common law is intact, including an absolute bar on expatriation. How then are Americans made, according to Fuller? Relying on the European “public law” theorists of the Enlightenment, such as Vattel, rather than the English common law, he said that citizens “are those born in the country, of parents who are citizens.” And he said that, by nature, those born to American parents outside the United States are citizens as well. Thus Fuller’s principle, by his own terms more “Roman” than “feudal,” was the contrary of jus soli: it was jus sanguinis—“right of the blood”—though Fuller nowhere used that Latin phrase.

These really are the only alternatives—jus soli and jus sanguinis, place and parentage. While the former is common in nations inheriting the English common law, many countries choose the latter. (I learned recently, for instance, that if certain conditions had been just a little different, I might claim Italian citizenship by descent from my great-grandfather who came here before 1890.)

One school of thought today—call it the Claremont school, espoused by leading lights of the Claremont Institute—holds that there is a third way to look at the basis of citizenship, neither jus soli nor jus sanguinis. This third way, the “social compact” basis of citizenship, has some affinity with Fuller’s Wong Kim Ark dissent, but more elaborately claims that the Declaration of Independence makes every American’s citizenship dependent on his or her active consent to our political order, in word or deed. The naturalized citizen takes an oath; what of the born citizen? Claremont’s Edward Erler—who argues that Wong Kim Ark was wrongly decided—avers in his 2022 book on this subject: “When a child is born into a society based on compact, his allegiance follows that of his parents until he reaches the age of consent. . . . At this point, he can elect to remain a citizen in the society of his birth. . . .”

This does not bear close scrutiny. Erler’s social-compact basis is really a papered-over jus sanguinis. And it might almost work for the child of American parents, born in America or anywhere else. For the child of immigrants who have not been naturalized, on the other hand, Erler’s account is jus sanguinis—the child’s citizenship being that of the parents’ native country—until adulthood, when it magically becomes jus soli upon his simply staying put in the United States. It is telling as well that this account does not call for the U.S.-born child of immigrants to undergo formal naturalization—something, as we will see below, that the law has never required. 

The failure of the social-compact theory of citizenship is that, well, it’s a theory, and an ahistorical one. Far be it from me to deny the attractions of the Declaration of Independence. But American practice on the ground, from the founding onward, has been consistently on the common law’s jus soli basis, suitably adjusted over time for the right of expatriation. A number of interesting legal cases, for instance, arose from the circumstances of the Revolution itself, which was a civil war in which two peoples emerged from what had been one. Some loyalists successfully expatriated themselves, while others were understood still to be American citizens, sometimes to their cost, sometimes to their benefit. But in every case I have seen throughout the antebellum period, jus soli was the rebuttable presumption—sometimes indeed rebutted, but always the beginning of the analysis was where the party in question was born, not to whom.

Legislative and Executive Views of Citizenship

In addition to the judicial decisions often discussed on this question—and the early legal treatises often consulted—we should look to another pattern of practice, both contemporaneous with the founding and consistent afterward. First we should look to what Congress said. The Constitution may have been silent on the basis of birthright citizenship, but Congress clearly embraced the jus soli principle from the beginning. The first Naturalization Act, passed in 1790, made it easy for immigrants to become citizens (if they were free and white, that is): they needed only to live in the country for two years, stay in one state for at least a year, be “of good character,” and take an oath to support the Constitution. Any minor children of the immigrant “dwelling within the United States” (that is, who had immigrated with their parent—no need to specify what country they’re in if they were born here to the naturalizing parent) would also become citizens at that time. 

Then there’s this interesting sentence: “And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.” In other words, while the law did not address itself at all to the citizenship of children born in America to immigrant parents prior to the latter’s naturalization, Congress thought it necessary to legislate the citizenship of the children of Americans born outside the country. The silence on the American-born children of resident aliens, and the felt need to speak to the situation of foreign-born children of Americans, can both be accounted for only by the fact that jus soli—born here, citizen here—was the governing presupposition.

Every naturalization act has embodied the same understanding. (And the use of the precise Article II phrase “natural born citizen” in the 1790 act suggests that Congress didn’t want to bar children of American emigrés or travelers from being eligible for the presidency. That expression was not used in subsequent naturalization acts.) Most importantly, no naturalization act in American history has ever contemplated the necessity of naturalizing the American-born children of immigrants. The governing presupposition of every congressional enactment on the subject has been that the citizenship of such children is assumed, whether their parents have been naturalized or not, or indeed ever become so.

The naturalization laws passed by Congress became more detailed and complex over time, but this tacit presupposition of jus soli for American-born children of immigrants is an unbroken thread. In 1906, in its most elaborate legislation yet on the subject, Congress included the templates for forms to be filled out by the applicant for naturalization. Those forms inquired when and (if by sea) on what vessel the applicant for citizenship arrived in the United States. The alien applicant for membership in the American polity has always been presumed to be from elsewhere, never born here. Smuggling jus sanguinis into American law, openly or under cover of an illusory social-compact theory of citizenship, flies in the face of what American law in practice has invariably done on the subject.

It bears reiterating that there are just two ways to become a U.S. citizen: birth on the soil, and naturalization of the alien-born. There isn’t a third way—Italian son of Italian immigrants, born here but somehow remaining Italian until magically turning American at the social-compact age of (say) eighteen, without benefit of naturalization.

In addition to the evidence of Congress’s legislation, from long before the Fourteenth Amendment to afterward, there is also evidence of the same understanding of American law in the executive branch, both before and after the amendment, as embodying the jus soli principle.  In 1854, Franklin Pierce’s secretary of state, William Marcy, wrote in an official response to an inquiry that “according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship.” And during Ulysses S. Grant’s presidency, Hamilton Fish—considered one of our greatest secretaries of state—described the Fourteenth Amendment in 1871 as “simply an affirmance of the common law of England and of this country, so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage.” Fish went on to give the same account of the “subject to the jurisdiction thereof” qualification that we discussed above, saying it covered those “who may be within our territory with rights of extraterritoriality.” The standard nineteenth-century compendium of State Department documents is chock full of such official opinions on this subject, each one treating jus soli citizenship as the rebuttable presumption for anyone born in the United States.

In short, there is an unbroken pattern of legislative, executive, and judicial understanding, from the founding to the Reconstruction period to the present, that the children of immigrants in general are presumptively American citizens if born on American soil.

Does Immigration Law Matter for Citizenship?

This leaves President Trump’s executive order one slender reed to lean upon: its exclusion from citizenship of children whose parents are in the country unlawfully. (I leave aside the still more dubious exclusion of the children of legal sojourners on temporary visas.) To put the case most pointedly: can even Congress, by legislation, say that the Fourteenth Amendment withholds citizenship from such persons?

I think not. Aliens illegally present are no less “subject to the jurisdiction” of the United States and answerable to its political and legal authority than are those legally present. Neither they nor their offspring enjoy Hamilton Fish’s “rights of extraterritoriality.” They are not enveloped in the sovereign embrace of another country’s protection while here, with immunities from American law and judicial process, like visiting diplomats and their children. They are not members of quasi-sovereign “domestic dependent nations” within our borders, as the tribal Indians were in the nineteenth century. And no, neither are they the offspring of an invading army waging war against us.

And if Congress could divide the American-born children of immigrants into camps of the blessed and the damned—offspring of legals here, of illegals there, or of green-card holders here and of temporary-visa holders there—then this would amount to saying that Congress could invent a new jus sanguinis principle, hitherto alien to American law from the country’s inception, in which parentage mattered and place of nativity did not (or at least was negotiable according to legislative will). Could Congress, at any time, close off the country to all immigration, and say that henceforth all children born here to any aliens still resident in the country are deportable aliens? According to the only logic that can support the president’s executive order, the answer must be “Yes.” 

But that is not a plausible scenario when placed next to this language: “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 logic of denying citizenship to the American-born child of any immigrant has its own momentum, and can stop only when it has completely destroyed any reasonable reading of what the Constitution has to say. Thus the rationale of the executive order makes a mockery of two and a half centuries of American law on citizenship, as continuous before the Fourteenth Amendment as after.

Illegal immigration is unquestionably a problem of great concern to many Americans. The citizenship of the American-born children of illegal immigrants unquestionably complicates our border control and deportation policies. But the Constitution’s grant of citizenship cannot be a function of Congress’s immigration laws, let alone of a president’s executive order written on the basis of those laws. Only a constitutional amendment could unsay what the Constitution conclusively says on that question: born here, citizen here.

Image sourced via Wikimedia Commons.