Howard Lurie: Thinking about birthright citizenship
“Birthright citizenship” is the belief that the US Constitution automatically makes anyone born within the United States a citizen of the US even if the child’s parents entered the country illegally. The basis for the birthright citizenship belief is the following provision of the Fourteenth Amendment: “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.”
It is important to understand that the provision does not say: “All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.” If that was the wording of the provision in the Fourteenth Amendment, it would clearly make anyone born in the US a citizen, and neither the President nor the Congress could Constitutionally provide otherwise.
However, the Constitutional provision requires, in addition to being born here, that the person be “subject to the jurisdiction” of the United States. That requirement is added by the conjunction “and.” It quite clearly says “and subject to the jurisdiction thereof.” Either that language has some meaning or it has none. It is hard to believe that the framers of the language added some completely meaningless language to the provision. So the question is: what does it add?
One thing that it clearly seems to add is a recognition of the fact that some people born in the United States are not subject to US jurisdiction. What is not at all clear, however, is what the dividing line is between not being subject to US jurisdiction and being subject to US jurisdiction. The more basic question is: what subjects a person to US jurisdiction?
The advocates of birthright citizenship assert that merely being born here renders the person subject to US jurisdiction. They read the provision as if it said: “All persons born or naturalized in the United States, are subject to the jurisdiction thereof, and are citizens of the United States and of the State wherein they reside.” They reach this conclusion by making the mistake of equating the word “jurisdiction” with the word “laws.” They assert that anyone born here is subject to our laws, and, therefore, is subject to US jurisdiction. If that were so, then the phrase “and subject to the jurisdiction thereof” really adds nothing.
The words “jurisdiction” and “laws” are not interchangeable. The word “jurisdiction” has different meanings depending upon the context in which the word is found, and does not mean “laws”. The word “jurisdiction” is frequently used in legislation dealing with courts. Courts may have jurisdiction over a person or over property. But they have only that jurisdiction that they are granted by the legislation that creates them. A small claims court, for example, has a very limited jurisdiction. Appropriate legislation may confer or deny jurisdiction to courts. A provision of federal law, for example, provides that the US district courts have original jurisdiction over civil actions dealing with patents, copyrights and trademarks. State court are expressly denied any similar jurisdiction.
It should be evident that the word “jurisdiction” in that statute has a very different meaning than the same word in the Fourteenth Amendment provision. And the word “jurisdiction” in these statutes clearly cannot be equated to the word “laws.”
None of that, of course, tells us much about personal jurisdiction, but does raise an interesting question about the power of Congress to create or negate personal jurisdiction. No language in the US Constitution says anything about who is or who is not “subject to the jurisdiction” of the US. The Constitution does confer upon Congress the power to “establish a uniform Rule of Naturalization.”
Congress could, therefore, provide for the citizenship of the children of illegal entrants. An interesting question raised by the birthright citizenship controversy is whether Congress could Constitutionally deny it. We probably assume, without thinking about it, that Congress could provide that children born to illegal entrants are subject to the jurisdiction of the US. But, could Congress provide that children born to illegal entrants are not subject to the jurisdiction of the US? Negating jurisdiction in this sense is not the same as relieving them of obedience to our laws.
If Congress has the power to assert jurisdiction, one might conclude that it also has the power to negate jurisdiction. And if it does, then the birthright citizenship principle is skating on very thin ice.
Probably no one asserts that children born to foreign diplomats in the US become US citizens by birth. The explanation given is that the diplomats are not subject to US jurisdiction although there is nothing in the Constitution that says so. Obviously, the status of that child’s parents is important in answering the question of whether the child is subject to the jurisdiction of the US.
So, if the status of the child’s parents is important in determining if the child is subject to the jurisdiction of the US, perhaps the illegal presence in the US of the child’s parents is not insignificant. And if Congress is not Constitutionally barred from negating US jurisdiction over the child, then perhaps Congress could put an end to the birthright citizenship controversy.
On his first day in office President Trump issued an Executive Order directed at ending “birthright citizenship” in the United States. Of course, the President is not Congress and does not have the power of Congress.
Within days of issuing the Executive Order it was challenged by several lawsuits from coalitions opposed to it, and by a number of state attorneys general. Thereafter, it was temporarily blocked by a federal judge who called it “blatantly unconstitutional.” The judge did not base the decision on the grounds that only Congress had the power to deny birthright citizenship.
The judge’s decision was clearly based on a reading of the Constitution that renders the phrase “and subject to the jurisdiction thereof” meaningless. In my opinion, that reading is blatantly unconstitutional.
Howard Lurie is Emeritus Professor of Law, Charles Widger School of Law, Villanova University
Birthright citizenship is a law, not a belief. If Trump wants to change that he cannot do this via executive order. He needs to follow the law, which requires 2/3rds of the states and Congress to approve a Constitutional amendment.
Mr. Lurie is engaging in mental gymnastics over the word “jurisdiction”. If he is correct about the definition of “jurisdiction”, lets take Melania Trump to task. She entered the U.S. on a tourist visa and worked as a model. Then she got an “O”/Einstein visa even though she doe snot meet the criteria. She gave birth to a son and her parents entered the country through chain migration. Based on this, Melania repeatedly violated immigration law and her parents, her son, and her parents should be removed from the U.S. for violating immigration law.
Diplomats and their children are not subject to jurisdiction of the United States in the literal sense that they are not subject to our laws. Illegal immigrants are, otherwise something like the recently passed Laken Riley Act — which requires law enforcement authorities to detain illegal immigrants charged with or convicted of certain crimes — would be moribund because illegal immigrants could not be charged or convicted of crimes in American courts.
Congress could, by the way, pass a law removing illegal immigrants from the jurisdiction of the United States. That would, however, have the effect of giving them immunity from arrest and prosecution, an even less desirable outcome than their children having automatic citizenship.
This whole article is sophistry arguing over angels on the head of a pin, an embarrassment on both a professional and personal level for a law professor. We are supposed to be the side that believes in originalism, that laws and constitutions have a fixed meaning. Go back and read the Senate debates over the citizenship clause. Go ahead, they’re longish but nothing unmanageable over a dedicated evening or two. Their intention is incredibly clear: those without some sort of special exception to the jurisdiction of American law (such as diplomats, enemy soldiers, and Indians on reservations) who are born on American soil would citizens, period.
The whole debate otherwise is outcome oriented jurisprudence.
Poor commentary – Baron Trump has a native born U.S. citizen as a father. This basically negates your second paragraph. There is much to debate about the application of the 14th amendment and that will be decided in court. The issue of “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,” is at the heart of the matter. The court case that is used as precedent involved the child of two Chinese nationals who were in the U.S. legally and under its full jurisdiction when he was born. The question will, I believe, revolve around the issue of what “jurisdiction” is meant. Is a person in the U.S. illegally under its jurisdiction or in defiance of it? Is the lawful citizen of another country in under a visa with limitations under the jurisdiction of the U.S. or not? It will play out in court and the final decision may or may not please you or the author of this article.
Someone is under the full jurisdiction of the United States if no other country can arrest them and put them before a judge while they are in the United States. That’s all it means. This is the legal fiction foreign diplomats operate under, it’s how it works for hostile foreign soldiers (being subject to their own country’s military courts), and it show it worked at least in theory for Indians on their own reservations when the 14th amendment was passed (and why they didn’t receive birthright citizenship under it).
It’s really not as unclear as people want it to be. Jurisdiction is a weasly word for the layman, but it wasn’t for the lawmakers who drafted the 14th amendment and it shouldn’t be for originalist judges.