Supreme Court to Review Trump’s Birthright Citizenship Challenge

On Friday, the Supreme Court announced that it would consider a challenge to President Donald Trump’s executive order aimed at abolishing birthright citizenship. According to the 14th Amendment of the Constitution, anyone born on U.S. soil automatically becomes a citizen. Trump’s attempts to reinterpret this constitutional principle may not stand up to scrutiny.

The 14th Amendment, ratified in 1868, was the first to define citizenship within the Constitution. It states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” Before the Civil War, individual states were responsible for granting citizenship, often following British customs. The British legal principle of Jus Soli indicated that nationality was determined by birthplace, whereas Jus Sanguinis dictated that it was based on a person’s parentage. Notably, British legal scholar William Blackstone articulated that “children born to aliens here in England are, generally speaking, natural born subjects.” Following independence, states incorporated aspects of British law into their legal systems.

Congress did not draft the 14th Amendment to alter this practice; instead, it affirmed citizenship rights in the context of addressing the grave injustice of slavery. In the infamous Dred Scott v. Sandford case of 1857, Chief Justice Roger Taney maintained that enslaved individuals could never be citizens, despite being born in the U.S. He argued that the Founders believed Black Americans could never equal their white counterparts, even though the Constitution did not preclude their citizenship or the protection of their rights by Congress or the states.

The 14th Amendment effectively reversed the conclusions of the Dred Scott case, ensuring that no government could revoke citizenship based on ethnicity, religion, or political identity.

The only way to challenge this straightforward interpretation of the Amendment seems to involve misinterpreting the phrase “subject to jurisdiction.” Scholars from the Claremont Institute, some of whom I consider friends, laid the groundwork for Trump’s executive order. They argue that “subject to jurisdiction” implies that a child must not only be born in the U.S. but also have parents who are legally present. They opine that aliens are not within U.S. jurisdiction, as they owe allegiance to other countries.

Interestingly, in the view of the Claremont Institute, Congress during Reconstruction expanded citizenship rights for freed slaves but simultaneously restricted them for foreigners. However, one could argue there’s scant rationale to interpret Reconstruction in such a way, especially since it represented a significant expansion of constitutional rights.

This argument misinterprets what “subject to jurisdiction” means. Anyone present in U.S. territory is subjected to its laws, including foreigners. If we were to read the rules differently, a foreign national might claim they are not within jurisdiction while on U.S. soil, potentially undermining the legal authority to arrest them.

Critics argue that “subject to jurisdiction” should refer to the citizenship of a child’s parents, or it risks redundancy. Yet during the era of the 14th Amendment’s ratification, certain groups, such as foreign diplomats and enemy soldiers, were exempt from U.S. laws, despite being physically present on the territory. Additionally, Native Americans living on tribal lands were not subject to U.S. jurisdiction until the federal government began to amend tribal sovereignty in the late 19th and early 20th centuries, ultimately extending citizenship rights to Native Americans in 1924.

The draft of the 14th Amendment supports a straightforward interpretation. The Civil Rights Act of 1866, which preceded its ratification, extended citizenship to those born in the U.S., explicitly excluding individuals “subject to foreign powers” and “untaxed Indians.” The Amendment was passed due to uncertainty about federal authority in relation to the Act. If the Amendment drafters had intended to exclude children of aliens from citizenship, they could have adopted language from the 1866 law regarding loyalty to foreign powers.

Legislative debates surrounding the ratification of the 14th Amendment are limited, but those that do exist seem to support the idea of birthright citizenship. For instance, when the amendment was introduced, some in Congress raised concerns over whether children of Chinese immigrants or “Pennsylvania-born gypsies” would be considered citizens. The response was largely affirmative.

The Supreme Court’s interpretation of this issue has remained consistent. In United States v. Wong Kim Ark (1898), the Court affirmed that children born to Chinese parents in San Francisco were citizens. Despite restrictions that prevented parents from becoming citizens, the government couldn’t deny citizenship to their children. The ruling emphasized that the 14th Amendment upholds citizenship by birth within U.S. territory regardless of parental status, tearing down the argument that aliens fall outside of U.S. jurisdiction.

While it’s true that Trump can contest the Wong Kim Ark decision, he must convince the justices to overlook the clear constitutional text, historical context from the era of the 14th Amendment’s ratification, and over a century of established practice and judicial interpretation. It seems unlikely that a conservative Supreme Court, with its originalist perspective, would reject the long-held understanding of civil rights that has prevailed in America from the nation’s founding through Reconstruction and into contemporary times.