President Trump’s recent executive order limiting birthright citizenship has ignited intense debate among legal scholars and politicians. The order restricts automatic citizenship for children born to tourists, international students, and individuals residing illegally in the United States, limiting it primarily to offspring of permanent legal residents.
The constitutional basis for this debate centers on the 14th Amendment’s citizenship clause, which states: “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.” While most legal experts interpret this to grant citizenship to virtually anyone born on U.S. soil, some argue for a narrower interpretation.
A key point of contention lies in the phrase “subject to the jurisdiction thereof.” The predominant legal view holds that this applies to anyone generally subject to U.S. law. However, critics argue that the amendment only covers those under complete U.S. jurisdiction, noting differences in how American law applies to citizens and permanent residents versus temporary visitors,
particularly regarding obligations like military service and jury duty.
The historical context provides additional insight. Prior to 1980, the term “birthright citizenship” was rarely used in public discourse, suggesting a possible shift in interpretation over time. Historical precedent from the 1920s shows that children born to temporary workers were sent abroad with their parents during the Depression without constitutional challenges, indicating a different understanding of the amendment’s scope.
The amendment’s grammatical construction has received insufficient attention in legal discourse. The full sentence structure, requiring both birth/naturalization and state residency, could suggest that citizenship rights were intended specifically for state residents, not temporary visitors or territorial inhabitants.
A significant legal precedent, the 1898 case of U.S. v. Wong Kim Ark, addressed the citizenship of children born to permanent resident aliens but did not specifically rule on temporary visitors. This case, decided by largely the same Supreme Court that established the “separate but equal” doctrine, has significantly influenced modern interpretations.
The American approach to citizenship differs fundamentally from British common law, which focused on allegiance to the monarch. The U.S. system, rooted in republican principles, emphasizes citizenship over subjecthood, including the right to change nationality – a right British subjects lacked. This distinction suggests that American citizenship laws might reasonably differ from British precedent.
America’s first Naturalization Act of 1790 reflected this republican approach, addressing citizenship for children born abroad to U.S. citizens while emphasizing active citizenship and residency
requirements. Similarly, Thomas Jefferson’s Virginia citizenship law stressed intention to reside and fidelity to the commonwealth as key factors.
The 14th Amendment’s primary purpose was to overturn the Dred Scott decision and ensure citizenship for Black Americans. Whether its language extends citizenship to children of temporary visitors remains debatable. While some state courts historically granted citizenship in such cases, the federal system’s nature means individual state precedents may not establish a uniform national standard.
As this debate continues, the full implications of the 14th
Amendment’s citizenship clause, particularly regarding temporary visitors and non-residents, merit careful consideration within the context of American republican principles and historical
understanding.