Amy Swearer, a senior legal fellow at the Heritage Foundation, recently discussed the topic of “birthright citizenship” in a video for PragerU. She suggests that the framers of the 14th Amendment might be surprised to learn how the phrase is interpreted today, which essentially makes nearly everyone born in the U.S. a citizen, regardless of circumstances.
According to her argument, many people firmly believe that if you’re born on American soil, you automatically become a citizen. She cites the text of the Fourteenth Amendment: “Every person born or naturalized in the United States and subject to its jurisdiction is a citizen of the United States.”
Swearer emphasizes a key phrase, “subject to jurisdiction,” which adds a second condition for birthright citizenship beyond just being born in the U.S. This raises an important question: who exactly is born under American jurisdiction?
She highlights that the 14th Amendment was ratified in 1868, just after the Civil War, partly to counter the notorious 1857 Supreme Court ruling in Dred Scott v. Sandford, which stated that black Americans could never be citizens. Even though slavery has ended, Swearer explains, that decision still carries weight in law, indicating that while black Americans are no longer enslaved, they were still not recognized as citizens.
She argues that the 14th Amendment settled this once and for all and notes that newly freed slaves and their children were clearly born under U.S. jurisdiction. Swearer contends that the original authors of the Amendment would be stunned to see its words now interpreted to grant citizenship to virtually anyone born on American soil.
She references Yale law professor William C. Robinson, who, in a law treatise from 1875, stated that the Fourteenth Amendment intended to confer citizenship only to those born within the jurisdiction of the U.S.
Further, Swearer notes this aligns with what the federal government initially understood. She gives the example of an 1890 case involving Mary Devereaux, an Irish citizen who gave birth in New York while waiting for immigration approval. Authorities ultimately denied her entry, and as a result, her U.S.-born daughter was not considered a citizen. Both were sent back to Ireland.
She then brings up the 1898 case, USA v. Wong Kim Ark. This case is frequently referenced to support universal birthright citizenship. It involved Wong, the son of Chinese immigrants who was born and raised in the U.S. When he returned from a visit to China, he faced deportation, which led him to sue the government, claiming he was a natural-born American citizen. The Supreme Court sided with him.
However, Swearer contends that while this ruling is often cited as proof that the 14th Amendment guarantees universal birthright citizenship, it doesn’t necessarily support that claim. The decision was primarily aimed at addressing the unjust Chinese Exclusion Act of 1882.
She explains that the Act prevented Chinese immigrants from naturalizing, regardless of how they lived or contributed to American society, while Wong’s parents were lawful permanent residents. Consequently, the Supreme Court’s decision clarified that, although Congress can deny Chinese immigrants the right to become citizens, it cannot place their U.S.-born children in a permanent alien status based on race.
Swearer concludes that universal birthright citizenship isn’t mandated by the text or historical context of the Fourteenth Amendment. She argues it contradicts early interpretations and isn’t upheld by Supreme Court precedents.
