During the first Trump administration, some of the president’s supporters argued that the 14th Amendment to the U.S. Constitution requires birthright citizenship to those born in the United States to parents who are not legal residents. He urged the president to accept the view that there is no such thing.
As I pointed out at the time, some of the most thorough and comprehensive arguments against the objection can be found in the work of Justice James Ho, who wrote several works. Editorial and short law review articles Regarding matters before becoming a judge on the United States Court of Appeals for the Fifth Circuit.
of 14th Amendment It provides in pertinent part: “All persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States.” This provision undoubtedly provides that persons born on American soil as American citizens and lawful permanent residents are American citizens at the time of their birth. Related legal questions Trump administration executive order That means they were not “under the jurisdiction” of the United States at the time of their birth. Traditional explanations exclude children of foreign diplomats and invading forces. Revisionist explanations claim to exclude children of illegal aliens, and perhaps also children of noncitizen parents who do not have legal permanent resident status.
There may be a range, but non-originalist claims Although from a revisionist standpoint, As a matter of original public meaningthese arguments don’t work. Judge Ho explained the reason as follows: 2007 editorial:
When a person is “subject to the jurisdiction” of a court, that person must comply with the orders of that court. The meaning of this phrase is simple. Whenever one party is obligated to obey the laws of the other, it is said to be “subject to the jurisdiction” of the other party. The test is not loyalty but obedience.
The “jurisdiction” requirement excludes only those who are not required to comply with U.S. law. This concept, like much of early American law, derives from English common law. Under common law, foreign diplomats and enemy soldiers have no legal obligation to obey our laws, and their descendants therefore have no right to citizenship at birth. The Fourteenth Amendment merely codified this common law principle.
Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship, but no one disputed the meaning of the amendment. Opponents acknowledged, and indeed warned, that it would “give citizenship to the children of people who are in debt.” [the U.S.] Supporters of the amendment agreed that only members of Indian tribes, ambassadors, foreign ministers, and others “who are not subject to our laws” would be exempt from the amendment.
The strongest objection I’ve come across is Created by Peter Schack and Rogers Smith (Based on a 1985 book) But their arguments do not justify the Trump administration’s position. Rather, their position is that Congress has “the power to regulate access to birthright citizenship for groups whose existence or membership they have not consented to” by defining what is “subject to the jurisdiction of the United States.” It is said that it has. And if you value Congress’s Fifth Amendment power to enforce and enforce the provisions of the Fourteenth Amendment, this argument may have some force. But even if we accept this argument (and I am not persuaded by it), it would at most allow Congress to enact legislation that excludes some groups, such as undocumented immigrants, from the transmission of birthright citizenship. I guess that’s about it. That is not sufficient justification for unilateral action by the executive branch.
The above assumes that the question of birthright citizenship should be resolved by reference to the original public meaning of the Fourteenth Amendment. Rejecting this view, courts should give special deference to political branches, or that the meaning of the Constitution changes in response to political and other developments (such as elections in which leading candidates advocated contrasting interpretations of the Constitution). If one believes that one should accept, one thinks as follows. Maybe you’ll come to a different conclusion.
