The 14th Amendment: the Issue of Birthright Citizenship

by Lynn Hatcher ‘17

The Fourteen Amendment of the United States, ratified by Congress on July 9, 1868, is under close examination. Sparked by the highly volatile discussions amongst GOP presidential candidates, the issue of “birthright citizenship” has been at the forefront of debate. Throughout the nation, experts with varied perspectives on the issue have come forth with evidence of their analysis. Spurred by these arguments, United States citizens have joined in discussions concerning immigration and citizenship. A Rasmussen report shows that “forty-nine percent (49%) favor a proposal that would end birthright citizenship to children born of illegal aliens in the United States. Forty-one percent (41%) are opposed.” Although conservatives and liberals are at odds on this issue, it should not be defined along party lines. Regardless of party orientation, this controversy is interpreted through different lenses because what defines a citizen ultimately affects all posterity of the United States of America.

The controversy rests in the following clause: “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.” Passed as a post-Civil War amendment, the Fourteenth Amendment was ratified with the intent that it would protect the rights of native-born, black Americans. Immigration was not explicitly mentioned in this amendment because, at this time, the United Sates had no formal immigration policy. The phrase “subject to the jurisdiction thereof” is thus highly contentious with regards to immigration policy and citizenship legalities.

According to perspective of conservative majority, if the mother of a newly born baby in America is not legally a citizen, then the mother should still be subject to the jurisdiction of her native country until the process in complete. The 1965 Immigration Act coined the term “anchor baby,” referring to children born to mothers within United States sovereign borders that are not documented as citizens. The belief is these babies act as an anchor that pulls the mother and eventually a host of other relatives into permanent residency in the United States. In the 1884 Elk v. Wilkins case, the Supreme Court’s decision upheld this interpretation, stating that parents of children born in the United States must owe “direct and immediate allegiance” to the United States and be “completely subject” to its jurisdiction.

Those in favor of redefining the nature of citizenship argue that Section Five of the Fourteenth Amendment gives Congress broad powers to pass a statute defining birthright citizenship. Furthermore, previous legislation also is testimony to the fact that no constitutional amendment is necessary. In 1923 Congress maintained that Native Americans were not subject to United States jurisdiction because they owed primary allegiance to their tribes. Writing in the National Review, Edward J. Erler of the Claremont Institute, stated, “A correct understanding of the intent of the framers of the Fourteenth Amendment and legislation passed by Congress in the late nineteenth century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the ‘jurisdiction of the United States’ and therefore eligible for citizenship.”

The more liberal perspective defines “subject to the jurisdiction thereof” to mean that any person born within the sovereign border of the United States is granted automatic birthright citizenship by law. Attorney John Yoo rebuked the statement made by Erler in National Review a few days later: “Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory. Otherwise they could commit crimes of all sorts without fear of punishment.” All people within the borders of the United States must obey the law of the land, and the law is not obeyed, then due process under the law will occur. In 1898 United States v. Wong Kim Ark, the Supreme Court confirmed that everyone born on United States soil is “subject to the jurisdiction” and thus entitled to birthright citizenship under the Fourteenth Amendment. The exceptions to the birthright citizenship clause are children of foreign diplomats and enemy soldiers in wartime.

Today, the American people hold the burden of tremendous responsibility for future generations. The meaning of “birthright citizenship” must be addressed and defined by law so that, in the years to come, all people—men and women, young and old, black and while—can understand what it means to be an American. Citizenship is the core, the heart, of national identity, and the value of “We the People” must never be undermined.