Should children of illegals born in the U.S. be citizens?

Under current law, they are, based on a Supreme Court interpretation of the 14th Amendment dating back to the 19th century.

But some conservatives want to challenge that interpretation. Their argument that the 14th Amendment doesn’t necessarily confer citizenship upon everyone born on U.S. soil has a certain amount of practical attractiveness. After all, should a Russian oligarch be able to get U.S. citizenship for his child by parking his yacht in New York Harbor and squatting there while waiting for his wife or mistress to give birth? And, more controversially, should illegal immigrants be able to get U.S. citizenship for their children simply by being here when they’re born? A growing chorus of Republicans is arguing they shouldn’t.

They’re not entirely without an argument. After all, the 14th Amendment doesn’t say, “All persons born or naturalized in the United States are citizens of the United States.” It says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Why should a Russian who gives no allegiance to the United States, then takes his child home and raises him as a Russian who gives his allegiance to the Russian state, be allowed to contrive U.S. citizenship for that child in this manner?

But the qualifying phrase, “and subject etc.,” has long been read very narrowly to exclude only children of foreign diplomats, invading foreign soldiers, and Native Americans (who were made citizens by later enactments).

Yes, it’s legitimate to offer legal arguments about how the 14th Amendment should be interpreted, and to argue for changing the current interpretation. But the conservative arguments go back to what Congress’ intent was in drafting the 14th Amendment, and most legal scholars think their reading of congressional intent is incorrect.

In any case, there’s a severe problem with Trump’s claim that he can change it with an executive order, and that’s this: The current interpretation is established by Supreme Court opinions, and there’s no precedent for a president unilaterally overruling the Supreme Court.

In short, anyone who wants to change the current interpretation has to go through the Supreme Court. And that indeed may be Trump’s plan. If he issues an executive order, it’s sure to be contested in the courts, and that’s a way to get the issue before the Supreme Court, where proponents of a new interpretation can take a run at persuading the Court to revise its long-standing precedents on the issue.

On the other hand, there’s an argument that long-settled issues should stay settled. If someone wanted to try carving out an exception to the 13th Amendment’s ban on slavery, would anyone condone an executive order authorizing slavery in certain circumstances as a device to court-test the current interpretation of the 13th Amendment?

I don’t think so.

Cross-posted from in slightly revised form.


0 Comments Add Yours ↓

  1. theaveeditor #


    The real issue here is not the Amendment itself but its intent and the intent of the ahole in the WH.

    The amendment was intended to deal not just with the freed slaves but with the lack of clear language in the Constitution before that as to who was a citizen. Remember that as of 1775 there were no native born Americans. More than that, after 1775 we had immigration, a lot of it. If Patrick and Betsy immigrated from Ireland and had a kid, what was that kid? Corned beef?

    Then there is the ahole in the WH. Yep, the 14th is a faulty amendment but it is part of a messed up immigration system. The Horsesass (aka Stormy Daniel’s lover) has no interest in reform, just creating hate.

  2. Richard Pope #

    Read the language carefully. “[A]nd subject to the jurisdiction thereof” modifies “[a]ll persons born or naturalized in the United States”. So this qualifier refers to the CHILDREN, and NOT their parents. Maybe the parents are here illegally, but the children have done nothing wrong. So birthright citizenship seems pretty clear from the plain language of the 14th amendment.

  3. Roger Rabbit #

    “Remember that as of 1775 there were no native born Americans.” – Sure there were, millions of ’em, and their descendants weren’t recognized as citizens until 1924.

  4. Roger Rabbit #

    Hello Richard! Good to see you again! As you know, current interpretation of the 14th Amendment holds that children of illegals born on U.S. soil are citizens. Trump wants to change that. He has two possible avenues, amend the Constitution or persuade the Supreme Court to reinterpret the 14th Amendment, neither of which are likely. Personally, I think his executive order is mostly hot air playing to his base in the heat of the midterms campaign. But if he’s serious about this, then signing an executive order gets the issue into the courts where conservative lawyers can make their arguments for an alternative interpretation, and that may be what he’s up to.

  5. Roger Rabbit #

    The intent of the ahole in the WH couldn’t be clearer: “Whites only!” He would deny citizenship to African-Americans, Latinos, and Asians if he could, no matter how good their English is, or how many generations they’ve been here. He thinks this continent belongs to his tribe only, and has no room for anyone else.