What is Birthright Citizenship?
Donald Trump’s newly released immigration proposal is to stop automatically giving citizenship to most people born on U.S. soil. It seems every cycle, jus soli or birthright citizenship, is threatened by the GOP caucus.
Dred Scott v. Sandford (1857)
In it, the Supreme Court held that African Americans, whether enslaved or free, could not be American citizens and therefore had no standing to sue in federal court. This included the sons and daughters of freed slaves until 1868, when the U.S. ratified the 14th Amendment to the U.S. Constitution.
Citizenship Clause of 14th Amendment
It’s elucidated in the very first sentence: “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 Civil Rights Act of 1866 had already granted U.S. citizenship to all persons born in the United States “not subject to any foreign power”.
The 39th Congress proposed the principle underlying the Citizenship Clause due to concerns expressed about the constitutionality of the Civil Rights Act during floor debates in Congress. The framers of the Fourteenth Amendment sought to entrench the principle in the Constitution in order to prevent its being struck down by the Supreme Court or repealed by a future Congress.
United States v. Wong Kim Ark (1898)
In this decision, the Court ruled that virtually everyone born in the United States is a U.S. citizen. This decision established an important precedent in interpreting the Citizenship Clause.
The majority concluded that the language of the citizenship clause referred to being required to obey U.S. law, meaning the language of the Fourteenth Amendment granted U.S. citizenship to almost all children born on American soil. The dissent argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power (ability to be claimed as a citizen by another country) through jus sanguinis (inheriting citizenship from a parent). This would have excluded “the children of foreigners, happening to be born to them while passing through the country”
Interestingly enough, the court ruled that the 14th amendment did not confer birthright citizenship to those born on reservations, because they are not technically subject to U.S. jurisdiction. The Nationality Act of 1940, according to he Congressional Research Service, “finally and unambiguously declared all Native Americans born in the United States to be U.S. citizens.”
A lot of it is covered by federal statute and not the Constitution. Currently, those born in the U.S. territories have birthright citizenship either by statute or not at all (American Samoa). In order to change the Constitution, an amendment must be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.
Birther Alert! Thomas Jefferson, James Buchanan, Chester Arthur, Herbert Hoover and Woodrow Wilson all have a parent born in another country. In fact, Jefferson’s mother was born in England, the country we had just broken away from. Both of Andrew Jackson’s parents were born in Ireland. Today, these men would be questionable citizens let alone Presidential candidates according to the GOP. Good luck to Ted Cruz, Marco Rubio and Bobby Jindal.