Birthright Citizenship is Essential to Our Ideal of Equality Before the Law

As a presidential candidate, Donald J. Trump vowed to end citizenship by birth (jus soli) for the children of undocumented immigrants. On the 150th anniversary of the 14th Amendment’s ratification and emboldened by the imminent shift in the Supreme Court’s balance, the administration has found a propitious time to begin its attack on the amendment’s birthright citizenship clause, a pillar of the U.S. ideal of equality before the law.

In a recent op-ed in The Washington Post, Michael Anton, a former Trump administration speechwriter, resurrected the claim that this clause can be reinterpreted by the president or Congress to exclude the children of undocumented immigrants. In fact, it would require a constitutional amendment to deny citizenship to the U.S.-born children of any politically disfavored group. Moreover, it would represent a disastrous policy shift for a nation whose success has largely turned on its unprecedented ability to incorporate immigrants.

For 150 years, the 14th Amendment has upheld the promise that the United States would never again become a two-tiered society, comprised of U.S. citizens on the one hand and a hereditary underclass of “illegal” persons who have broken no laws on the other. The birthright citizenship clause also underlies the nation’s historic genius at attracting and integrating immigrants, which should be an overriding priority in a nation with 43 million foreign-born persons. As legal scholar Margaret Stock has argued, its repeal would also require the establishment of a costly new government bureaucracy charged with making often complex citizenship determinations for each of the four million babies born in the United States each year.

Fortunately, it is not within the president’s discretion to set the meaning of this clause. The 14th Amendment extends citizenship to “all persons” born in the United States and subject to its jurisdiction. The children of undocumented residents constitute “persons” under the Constitution and are subject to U.S. jurisdiction, meaning subject to its laws, power and sovereign authority. The “subject to the jurisdiction” language was meant to exclude the children of diplomats, enemy soldiers and Native Americans who were subject to the laws of their sovereign tribes. It would come as a great surprise to law enforcement agencies and to undocumented immigrants to learn that their children were “subject to the jurisdiction” of the United States but not required to obey its laws. By this faulty interpretation, U.S.-born non-citizens would presumably not be subject to deportation.

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