President Donald Trump has said he plans via executive order to eliminate birthright citizenship — under which virtually all those born on U.S. soil are automatically granted U.S. citizenship, even if their parents are illegal immigrants. This raises serious questions for conservatives.

Many of us think that in today’s world, birthright citizenship is an insane policy that undermines our sovereignty. Why reward people who come here illegally with citizenship for their kids?

But conservatives also insist that the government stay within its constitutionally designated boundaries, so we have to ask whether the Constitution mandates birthright citizenship. If it does, as I personally believe, we are stuck with it unless we can pass a constitutional amendment to change it.

Let’s look at the history and arguments.

The text and its plain meaning

The Citizenship Clause of the 14th Amendment reads: 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.

“Born or naturalized in the United States” has an obvious enough meaning. The trouble comes from “subject to the jurisdiction.

To modern ears, the natural reading is that one is “subject to the jurisdiction” of a government if that government exercises authority over him. The U.S. government clearly has jurisdiction over illegal immigrants; otherwise, we would be powerless to deport them or or otherwise punish them for breaking our laws.

This commonsense of “jurisdiction” is also found in pre-14th Amendment historical texts, including dictionaries and legal documents. But interpretations have varied, so we must be open to the idea that “subject to the jurisdiction” is used in a deeper and more artful way.

Foreigners, Chinese and ...

The main purpose of the Citizenship Clause was to give citizenship to former slaves and their descendants, but its language is much broader, announcing a general framework through which citizenship would be granted. Illegal immigration was not an issue at the time; immigration was unrestricted, so the drafters of the amendment never discussed it. But they did discuss whether various populations would be covered and in so doing outlined principles they thought were inherent in the concept of being “subject to the jurisdiction” of the U.S.

Here is an incredibly important comment on the provision by Sen. Jacob Howard:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

Unfortunately, the key sentence is cryptic. Is that a list of three different categories (foreigners, aliens and people from the families of ambassadors and ministers), in which case all kids of foreigners and aliens would be excluded from birthright citizenship? Or is “aliens” used simply as a synonym for “foreigners” and meant to be read in apposition, in which case the exclusion is limited to the families of ambassadors and foreign ministers? (”Foreigners — that is, aliens — who belong to the families ...”)

More compelling is a subsequent discussion of Chinese immigrants in California (who were allowed to come but not allowed to naturalize) and Gypsies in Pennsylvania, a discussion set off by a racist diatribe by Sen. Edgar Cowan, who asserted that states must be allowed to stop themselves from being overrun by dirty racial minorities and believed the 14th Amendment would strip them of this authority by granting citizenship to the children in those populations.

Sen. John Conness agreed that the amendment would make the kids of Chinese immigrants citizens, but argued this was no problem, and simply waved aside concerns about Gypsies. The two senators agreed that children of immigrants born on U.S. soil would be citizens; they differed only on whether it was a good thing.

Native Americans

The 14th Amendment’s citizenship guarantee generally did not apply to Native Americans. Discussions on this point provide some of the key pieces of evidence for the anti-birthright-citizenship side of the debate, as some comments imply that to be “subject to the jurisdiction” of a country you must owe it “allegiance.”

In response to a suggestion that the amendment specifically excluded “Indians not taxed,” as the 1866 Civil Rights Act had, Howard responded that this was not necessary: “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi-foreign nations.”

On the one hand, one may legitimately ask whether an illegal immigrant owes “allegiance” to the U.S. or his home country. On the other, one might ask the very same “allegiance” question of legal immigrants — who it seems clear are covered by the amendment.

Legal interpretations

The argument against birthright citizenship finds considerable support in court rulings, but some contradict clear statements of the 14th Amendment’s supporters by excluding all immigrants — and because the courts have gotten some very big questions about the amendment wrong.

In the 1873 Slaughter-House Cases, in “dicta” — comments not directly relevant to the case and thus not binding precedent — the Supreme Court wrote that “the phrase, ‘subject to its jurisdiction’ was intended to exclude from [birthright citizenship] children of ministers, consuls and citizens or subjects of foreign states born within the United States.” That’s a pretty clear statement from the highest court in the land.

The same year, the attorney general released an opinion stating that aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.

More than a decade later, in Elk v. Wilkins, the Supreme Court addressed the question of whether someone born in a Native American tribe could sever his tribal relations and thereby gain an entitlement to U.S. citizenship. The court made a point about consent that has become a major plank in the case against birthright citizenship: The Native American could not change his “allegiance” merely through his “own will without the action or assent of the United States.” Also: “To be a citizen of the United States is a political privilege that no one, not born to, can assume without its consent in some form.”

Cutting in the opposite direction, though, is the 1898 Wong Kim Ark case. Rather than interpreting the 14th Amendment’s own text and history, the court decided that the amendment was intended to implement the idea of citizenship we inherited from English common law. It found that a man born to Chinese-immigrant parents in the U.S. was a citizen, as were “all children here born of resident aliens” (with the usual exceptions of Native Americans, foreign diplomats, etc.). The man’s parents had come legally, though, so the ruling didn’t directly address the question as applied to illegal immigrants.

To sum up

The argument against birthright citizenship has a long history, but I don’t find it convincing, given the direct evidence from the text of the 14th Amendment and its immediate historical context — though we have no idea what the framers of the 14th Amendment would have thought about illegal immigrants because illegal immigrants simply didn’t exist back then.

To defend an executive order denying birthright citizenship to illegal immigrants before the Supreme Court, however, the Trump administration would need to convince all five originalist judges that “subject to the jurisdiction” must be read in a way that’s quirky to modern ears, relies on a highly specific reading of the historical evidence and overturns more than a century’s worth of standard practice. That’s a longshot.

Birthright citizenship is a nutty policy. But if I had to bet, I’d say it’s one we’re stuck with.

Robert VerBruggen is a deputy managing editor of National Review. Copyright 2018 National Review. Used with permission.

First Published: November 25, 2018, 1:00 p.m.
Updated: November 26, 2018, 3:23 p.m.