Many people all of the sudden became Constitutional scholars, particularly on the 14th Amendment, after President Trump issued an executive order placing limitations on birthright citizenship. The lack of clarity in navigating issues then arises from people using modern lenses to read law crafted in earlier times using language that has changed through time and context. Nonetheless, it is worth, briefly, celebrating the public’s interest in Constitutional law.
Understanding the framework of the 14th Amendment and its further elaboration by the Supreme Court provides clarity on not only birthright citizenship itself, but the limited application our practices have on illegal aliens. Justice Horace Gray wrote the famous ruling of United States v Wong Kim Ark, a case widely viewed as extending citizenship to all born here.
Justice Gray, however, did no such thing. Instead, he issued a precise ruling after exploring in tremendous detail the issue of birthright citizenship in its original form and its intentions and applicability in United States law. The rather originalist ruling of Gray is further proof of confidence that birthright citizenship was and is not meant to be extended to children of illegal immigrants born on US soil.
What is Birthright Citizenship?
Birthright citizenship is the notion that people born on a particular soil are citizens of that particular nation. The roots of birthright citizenship can be traced back to English common law, a primary source for the Constitution’s particular diction. Justice Horace Gray, author of the Wong Kim Ark decision, details the origins of birthright citizenship:
The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
Prior to the 14th Amendment, case law largely adhered to the notion that this British custom was in fact United States practice.
What does the 14th Amendment say?
Before we get there, I want to make a quick stop at the Civil Rights Act of 1866, which provides the framework for the 14th Amendment.
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, and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States
The 14th Amendment similarly states in its first clause:
All person 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 word that seems to be commonly overlooked is “and.” The citizenship is dependent on the clause “subject to the jurisdiction thereof”. In both the Civil Rights Act of 1866 and the 14th Amendment, citizenship is dependent on a lack of foreign allegiance. This brings us back to the notion of common law birthright citizenship. Justice Horace Gray notes the purpose of this clause:
As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States.
Following the Dred Scott decision, birthright citizenship was denied to free black people. The 14th Amendment remedied this ruling and applied birthright citizenship to non-whites.
Do children of illegal immigrants count?
English common law boast two obvious exceptions. One being children of foreign diplomats and the other being children of foreign enemies. In America however the application of this common law notion has adapted to meet the unique needs of the United States. “Indians not taxed” is a unique exception, perhaps expanding on the original notion of foreign enemies.
The question we then ask is how far does this expansion go? Since it includes Indians, who are not inherently foreign enemies nor considered equal in statehood as a European nation, does it include children born of those who have come illegally into the United States, while still citizens of a foreign land? The concept of illegal immigration, outside of outright invasion, was virtually nonexistent during feudal times. Are illegal immigrants subject to the jurisdiction of the United States? In Wong Kim Ark, the Supreme Court issued a landmark ruling providing clarity on the clause.
The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”
The Supreme Court set the scope of the “subject to jurisdiction thereof” phrase with the word “domicile.” The word domicile means legal residence. Children of legal aliens are entitled to citizenship, as the court specifically ruled. In the case of illegal immigration, domicile, or lack thereof, appears to be the deciding factor that the longstanding practice of birthright citizenship cannot be so automatically extended to children born of illegal residents as commonly practiced in the United States prior to Trump’s executive order.
This would mean the extension of birthright citizenship to those born illegally is performed, not in accordance to Supreme Court interpretation of common law citizenship, rather a pervasive myth in which domicile is a forgotten component in the formula for a child’s citizenship here in the United States.
Separation of Powers v Executive Order
Congress has passed the law via the Civil Rights Act of 1866 and the 14th Amendment. The Supreme Court has interpreted the law on multiple occasions, most applicably in 1898 in United States v Wong Kim Ark. Neither the laws passed by Congress nor the interpretations of the laws passed by Congress can adequately provide an argument that illegal immigrants are subject to the jurisdiction of the United States due to their lack of domicile within US soil. Yet this discrepancy has become pervasive in its enforcement. President Donald Trump has issued an executive order ending the automatic extension of birthright citizenship to children born of those illegally in the United States.
Though his exact wording may broaden that scope beyond what is lawful, the core intention to the law to curb citizenship for illegal immigrants is a strange instance where a major executive order is not so much a new law but a new enforcement of existing law. It would hardly be unconstitutional, for the President, to end the practice of giving citizenship to illegal immigrant children because US law does not currently have an unambiguous stance.
The executive branch is in a legal “no man’s land” between the passed law of Congress and the interpreted law of the judiciary. Within these boundaries, deciding how best to enforce the existing law, is the executive branch’s authority. The actions taken will inevitably end in an additional landmark ruling in the Supreme Court.