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Notes on Birthright Citizenship:

In 1790, when the last state ratified the US constitution, the document did not explain whether someone was a citizen if born within the geographic US. What resulted was a limbo status for slaves, free blacks, Native Americans, and children of immigrants who were born here. Various states created their own policies, and some courts acted in one way or another, but there was no national answer for several years. Then, in 1857, the Supreme Court issued one of its worst decisions of all time - holding that the children of slaves, born in the US were not citizens of the country. Dred Scott v. Sandford, 60 U.S. 393 (1857). 

After Dred Scott - the US passed the Civil Rights Act in 1866, which decreed that: “all persons born in the US and not subject to any foreign power, excluding Indians not taxed, are hereby citizens. Shortly after that, the States adopted the 14th Amendment in 1868, which says “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the US.” It was a direct rebuke to the decision in Dred Scott, and was clearly designed to grant citizenship to the children of slaves who were born in the US. 

The Supreme Court then found that the 14th Amendment did not apply to Native Americans who were born within the geographical confines of the US, but were not subject to the jurisdiction of the US as they were citizens of their Native American Nations. Elk v. Wilkins, 112 U.S. 94 (1884). Then, Congress fixed this decision as well, in 1887 with the Allotment Act, which made all Native Americans born within the US citizens (though it took many years… it wasn't until about 1940 that all Native Americans born in the US became citizens). 

But, while the birthright citizenship of Native Americans and the children of former slaves became clear through Congressional and Judicial acts, the children of immigrants remained an undecided issue. In fact, Co ngress had begun passing laws such as the Chinese Exclusion Acts in 1882, which limited the immigration of certain ethnicities, etc. Those laws also made it impossible for people from China to ever naturalize in the US. So, if people from China can’t naturalize (until 1940!), then could their kids born int he US be citizens, or were they somehow not “subject to the jurisdiction of the US,” as required in the 14th Amendment. Did the fact that their parents weren’t and never could become citizens mean that they were not subject to US jurisdiction somehow? 

The Supreme Court directly addressed this issue in 1898 in the landmark case of US v. Wong Kim Ark, 169 U.S. 649 (1898). Wong Kim Ark was born in San Francisco in 1873 to parents who were citizens of China, and in the Court’s words: “His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States.” In 1890, he goes back to China for a temporary visit with his family. He then returned to the US, and was denied entry. The Court decision finds that all children born in the geographic confines of the US, except for the children of diplomats, were citizens. 

The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

The Court goes into some depth in the opinion, talking about how the US Constitution is derived from the old Common Law, which at the time of the US Constitutions framing included the concept of Jus Soli, or birthright citizenship. Under the Common Law, the term “subject to jurisdiction,” meant under the authority of the King. Diplomats were not under the authority of the King, even though they were present in his Kingdom, as they were envoys of a foreign power, and so their children were not deemed to be citizens of the Kingdom simply by virtue of their having been born there. Otherwise, the citizenship of the child’s parent was irrelevant the child’s birthright citizenship, if they were born in an area under the control and jurisdiction of the King. 

The Court also talks about the government’s argument that the Roman Rule - Jus Sanguinis or right of the blood, which held that the citizenship of a child’s parents controlled, not the location of birth - should be the rule since so many countries had abandoned Jus Soli and adopted Jus Sanguinis. However, at the time of the drafting of the US Constitution, that was not the case, most of the countries our founders came from followed Jus Soli. At the time of Wong Kim Ark it was true many of those countries had moved away from birthright citizenship, but that wasn’t the case when we were founded, and so its irrelevant. 

Ultimately, the Court found that the 14th Amendment was set to include all children except for 2 categories: 1. children born of enemies in hostile occupation - or more clearly, the soldiers of an invading army; and 2. Children born to diplomats. The Court found that Congress has the constitutional authority to modify the laws of naturalization or obtaining US citizenship after coming here, but didn’t have the same power to unilaterally take away the citizenship of those born here without a change to the US Constitution itself. So… not an executive order or the passing of an Act of Congress - it would take an Amendment to the Constitution. 

Right now, the birthright citizenship rule includes those born in the “United States” includes Puerto Rico, Guam, and the U.S. Virgin Islands. See, Immigration & Nationality Act (INA) §101(a)(38). There are exceptions to this general rule, including those born to foreign heads of state, to diplomats on the “Blue List,” on foreign vessels in U.S. waters, and in certain U.S. possessions who are described as nationals. INA §§101(a)(22), (29).

In 1985, two guys names Schuck and Smith put out a book called “Citizenship Without Consent,” argued that the 14th Amendment was really lacking a consent component. That is, in order for someone to be “subject to the jurisdiction” of the US, the US has to consent to their being here. So people who are here without authorization lack such consent, and therefore their children - who similarly lack such consent, can’t be “subject to the jurisdiction” for purposes of the 14th, and should not be citizens.

Several commenters at the time, including Garrett Epps: argued at that time that Schuck and Smith have not properly considered the history of the 14th Amendment. Epps reported at the time that the congressional debates concerning the proposed 14th Amendment included references to the children of Chinese laborers and to “Gypsies,” a group he suggests were the mid–nineteenth century equivalent of today’s “illegal immigrants.” 

Due to a 1995 proposed bill to end Birthright Citizenship, testimony was taken in Congress, including by Walter Dellinger, who was an Assistant Attorney General at the time, and he made it clear that the legal theory proposed by Schuck and Smith (and now Donald Trump among others), was unconstitutional and that a Constitutional Amendment would be required to change our long-standing birthright citizenship. 

Another person testifying at that time was professor Gerald Neuman testified to Congress about Birthright Citizenship and was very critical of the theory that somehow those here without authorization are not “subject to the jurisdiction of the US.” His testimony laid out the history of the 14th Amendment and at the time of passage, he argues that the 14th Amendment was brought about in direct reaction to the Dred Scott decision denying citizenship to children of slaves or former slaves. He cites to a Senator Cowan who was opposed to the 14th Amendment because if we made the children of people from China citizens, then the government couldn’t easily exclude or get rid of their parents. Those in favor of the 14th Amendment directly addressed the citizenship of all children born in the US except for the children of diplomats - in keeping with the Common Law that formed the basis of the Constitution itself. There was direct debate on this topic and the Amendment was ultimately ratified and adopted. He also argued that those who are in the US, even those without authorization, are subject to the jurisdiction of the US, as they can be deported, charges with crimes, etc. unlike diplomats with their diplomatic immunity.