Universal Birthright Citizenship Discussion
Amy Swarer, a senior legal fellow at the Heritage Foundation, stated in a release that universal birthright citizenship is “not necessary in the 14th revised text or historical context.” She emphasized that it goes against early legal interpretations of the amendments and lacks support from Supreme Court precedent.
This topic became prominent during the Trump administration when President Trump issued an executive order aimed at those born in the U.S. to undocumented immigrants. Each year, around 250,000 so-called “anchor babies” are born in America, which allows their illegal immigrant parents to remain in the country.
On May 15, Trump’s Department of Justice argued before the Supreme Court that lower courts overstepped their authority by attempting to block the executive order. They claimed that organizations funded by George Soros, like CASA Inc. and the Asylum-seeker Advocacy Project, did not have the legal standing to challenge birthright citizenship.
Swarer explained the historical context of birthright citizenship in a nearly six-minute video, questioning whether the Constitution grants citizenship to all those born in the U.S., including children of undocumented immigrants and foreign tourists. She pointed to the 14th Amendment, which declares that anyone born or naturalized in the U.S., and subject to its jurisdiction, is a citizen.
She noted that while it seems straightforward, the phrase “subject to that jurisdiction” adds another layer of complexity. This raises the question of who is deemed subject to U.S. jurisdiction. She elaborated that the 14th Amendment was ratified in 1868, shortly after the Civil War, to correct the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which ruled that Black Americans could not be citizens even post-slavery. The 14th Amendment was intended to ensure that the newly freed slaves and their descendants, who had lived in the U.S. for generations, would be recognized as citizens.
Swarer mentioned that, although the amendment resolved race-related citizenship issues, the authors might not have intended for its wording to apply so broadly, granting citizenship to anyone born on U.S. soil under any circumstance.
She referenced Professor William C. Robinson, who articulated in 1875 that the 14th Amendment grants citizenship only to those born within U.S. jurisdiction who show loyalty to the country. Swarer argued that this perspective reflected the original understanding of the federal government.
Throughout her comments, Swarer provided historical examples of how the federal government previously interpreted the 14th Amendment. For instance, in 1885, a citizenship claim was rejected for Richard Greer, who was born in Ohio but whose German parents left the U.S. shortly after his birth. In 1890, a similar situation arose when a child born to a pregnant Irish woman on a ship in New York was denied U.S. citizenship because her mother was not legally admitted to the country.
Moreover, Swarer cited the 1898 Supreme Court case U.S. v. Wong Kim Ark. Wong, who was born to Chinese immigrants in San Francisco, claimed citizenship after traveling briefly to China. The Court ruled in his favor, but some believe that this case does not definitively establish universal birthright citizenship, as it sought to counteract the immoral consequences of Dred Scott and revise the Chinese Exclusion Act of 1882.
Swarer concluded by questioning why there is such confidence surrounding the establishment of universal birthright citizenship as constitutional law and suggested that perhaps we need to reflect on which interpretation of the Constitution is being referenced.
