No, birthright citizenship isn’t required by the Constitution


As a matter of constitutional first principle, no branch of our government can amend the Constitution. Not the Congress, not the President, not even the Supreme Court. Only “we the people” can do that, by one of the two procedures specified in Article V of the Constitution.

Had President Trump’s recent comments proposing to end birthright citizenship by executive order suggested that he thought he could unilaterally amend the Constitution, they would and should be met with a resounding response that he has no such authority.

That is not what he proposed, of course, though the notion that birth on U.S. soil is alone sufficient to be granted automatic citizenship has become so conventional that many have wrongly concluded otherwise. The Fourteenth Amendment’s citizenship clause, adopted in 1868, actually has two components, not one: birth on U.S. soil, and being subject to the jurisdiction of the United States.

Here’s the actual text: “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.” (Emphasis added.)

Some read the phrase, “subject to the jurisdiction,” to be synonymous with “subject to the laws,” and therefore conclude that everyone born in the U.S. (with the small exception of children born to foreign diplomats) is automatically a citizen.

But that is not how those who drafted and ratified the Fourteenth Amendment understood it. For them, being subject to the laws was synonymous with being subject to the “partial” or “territorial” jurisdiction of the United States. Anyone on U.S. soil is of course subject to our laws.

Sen. Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, noted at the time that “subject to the jurisdiction” of the United States meant subject to its “complete” juris­diction, “[n]ot owing allegiance to anybody else.” The clause therefore mirrored and constitutionalized language that was already in the 1866 Civil Rights Act: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

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