Birthright citizenship and “subject to the jurisdiction thereof”

President Trump says he wants to issue an executive order rescinding birthright citizenship to children of illegal immigrants (and possibly other non-citizens). His opponents say, among other things, that such a move is unconstitutional.

But are they right? I’m going to argue “probably yes, but not for the reasons the news analyses I’ve seen think.” (My analysis would also make it unconstitutional for Congress to do this, as well.) Kinda wonky stuff, but here goes:

The relevant part of the Constitution comes from a clause in the 14th Amendment, which states:

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.

This amendment was passed in the aftermath of the Civil War, and its primary purpose was obviously to grant citizenship to former slaves. But it spoke more broadly than that, and we are correct today to interpret it more broadly.

The key line is that little phrase in the middle of it: “…and subject to the jurisdiction thereof…”

The Amendment would be absolutely clear if that line were omitted. Everyone born in the US would be a citizen, period, end of discussion. But the amendment includes that pesky little “and.” That appears to create two tests for birthright citizenship: (1) being born in the U.S.; and (2) being subject to U.S. jurisdiction.

Trump and his supporters appear to be arguing that illegal immigrants and foreign visitors fail the second half of that test. But that’s not true, except for a small number of people with diplomatic immunity or something akin to that. Other foreigners, legal or illegal, are very much subject to U.S. jurisdiction.

The opposition appears to be arguing that the line is simply another way of stating “born or naturalized in the United States.” But that makes it redundant, and therefore meaningless. And courts are very reluctant to write off such lines as meaningless.

So what could that line actually mean? Who could be born in the United States and not be subject to its jurisdiction? Or, more importantly, who, in 1868, when the 14th Amendment was ratified?

Framed that way, the answer is pretty obvious. This phrase was designed to exclude Native Americans, or a least a great many of them. In fact, Native Americans weren’t granted citizenship until 1924, when it was done by an Act of Congress.

Why is this important? It is, of course, another indication of how badly our country has treated Native Americans, and how slow we have been to correct for it. But it also gives this phrase a meaning quite different from the one presumed by President Trump and his supporters. That means that if he actually issues the promised executive order, the 14th Amendment still blocks it…but not at the cost of ignoring an entire phrase.

Whether the President will actually issue that executive order, I don’t know. but the better we understand the citizenship clause of the 14h Amendment, the more informed the discussion will be.

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