By: Elise Skarda*

The concept of birthright citizenship has been mentioned in the news frequently recently. Many conservative presidential candidates are calling for an end to birthright citizenship,[1] though it is an unqualified constitutional right. So what is birthright citizenship, where does it come from, and why is it unconstitutional to qualify it?

Birthright citizenship is the guarantee that all persons born in the United States and under the jurisdiction of the United States are U.S. citizens.[2] ACLU. The concept of birthright citizenship arises from the Fourteenth Amendment § 1.

Section 1. All persons 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment.

The crucial phrase is located in the first sentence: “all persons born or naturalized in the United States, … are citizens of the United States.” Id.

The Fourteenth Amendment was adopted in 1868, as part of a series of three amendments, known as the Reconstruction Amendments. The purpose of the Reconstruction Amendments was to free enslaved people under the Constitution (Thirteenth Amendment, with qualifications), guarantee certain constitutional protections to recently freed men (Fourteenth Amendment), and give newly freed African American men the right to vote (Fifteenth Amendment). Students of History.

The Fourteenth Amendment was necessary because of the infamous case Dred Scott v. Sandford (1857), also known as Dred Scott. Dred Scott held that descendants of African people who were forced to come to the U.S. and were enslaved could not be citizens of the United States, whether those individuals were enslaved or free. Scott v. Sandford. It did not matter whether that individual was born on U.S. soil or not; ancestry was the deciding factor. Id. Due to the Dred Scott ruling, after slavery was abolished, freedmen did not have a path to U.S. citizenship. Id.

A few years later in 1898, the Supreme Court directly addressed whether children born on U.S. soil to non-citizen parents are U.S. citizens in United States v. Wong Kim Ark. United States v. Wong Kim Ark. Wong Kim Ark was born in California to Chinese parents, who had no path to citizenship. Id. The U.S. government argued that he was not a U.S. citizen under the Chinese Exclusion Act because his parents were not, and could not become, citizens. Id. Contrary to the Act, the Court held that under the Fourteenth Amendment, Ark was a U.S. citizen because he was born on U.S. soil. Id. Additionally, the Court held that the Fourteenth Amendment has not conferred any “authority upon [C]ongress to restrict the effect of birth, declared by the [C]onstitution to constitute a sufficient and complete right to citizenship.” Id. at 114.

Case law and the Constitution itself make it clear that neither an Act of Congress nor a Presidential order can repeal birthright citizenship. Wong Kim Ark, U.S. Cons. Art. V. The only way to do away with birthright citizenship in any form is a constitutional amendment. Regardless of the proposed measure to qualify birthright citizenship, however, the underlying racial animus is clear.

Ever since before Dred Scott, ending birthright citizenship has been an attack on racial and ethnic minorities. Dred Scott was an African American man; Wong Kim Ark was an American citizen born to Chinese parents. Scott v. Sandford, U.S. v. Wong Kim Ark. Native Americans also struggled to obtain U.S. citizenship, birthright or otherwise.[3] The Supreme Court so much as explicitly stated in Wong Kim Ark that “[t]o hold that the [F]ourteenth [A]mendment of the [C]onstitution ex­cludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of per­sons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.” Wong Kim Ark at 694. Though modern-day calls for an end to birthright citizenship use less explicit language, the racially motivated intent remains.[4]

An end to birthright citizenship through a presidential order or act of Congress would be both unconstitutional and harken back to the days of slavery, when Dred Scott, a free man born in the United States, was denied U.S. citizenship on the basis of the color of his skin.

[1] Candidates include Vivek Ramaswamy who stated, “I want to be very clear about this. I think that birthright citizenship does not and should not apply to the kids of parents who entered this country illegally.” NBC News. Former President Donald Trump said in a video posted to Forbes’ YouTube Channel that, if elected, he would sign an executive order, ensuring that the children of undocumented migrants “will not receive automatic US citizenship.” The Guardian, YouTube. In a list of immigration objectives, Ron DeSantis declared that he would “take action to end the idea that the children of illegal aliens are entitled to birthright citizenship if they are born in the United States.” ABC News.

[2] Please note, there are only two exceptions to birthright citizenship. The first is children born on U.S. soil to foreign diplomats who are non-U.S. nationals. USCIS. This is because diplomats are not formally “under the jurisdiction” of the United States and enjoy certain international immunities. Id. There is also an exception for children born to hostile forces on U.S. soil, which has remained largely inapplicable. National Public Radio.

[3] See, for e.g., Standing Bear v. Crook (1879).

[4] The current discussion uses coded language. “Children of illegal aliens,” says Ron DeSantis. ABC News. “[T]he kid of illegal immigrants and the families who came here undocumented have to be returned to their country of origin,” says Vivek Ramaswamy. NBC News. Ending birthright citizenship would “choke off a major incentive for continued illegal immigration, deter more migrants from coming and encourage many of the aliens Joe Biden has unlawfully let into our country to go,” says Donald Trump. The Guardian. The vague language leaves any potential racial animus open to interpretation, but even a heavily conservative blog published an article in 2010 entitled, “Ending Birthright Citizenship Will Make Republicans Look Like The Party Of Dred Scott.” The Federalist.

* Elise Skarda is an Online Editor for JLI Volume 42.