Posted incitizenship / constitutional amendment / immigrants / immigration / politics and government

What the 14th Amendment says about birthright citizenship


Note from the Editor: This article was first published in 2018 and has been revised.

While it may not be as frequently referenced as the First Amendment or as contentious as the Second Amendment, the 14th Amendment to the U.S. Constitution plays a significant role in substantiating fundamental American ideals of liberty and equality.

This move would not only undo a significant aspect of American jurisprudence over the last 150 years, but it would also dismantle a fundamental pillar in how the Constitution has been interpreted and understood in the country.

We sought the insights of two authorities on constitutional and immigration law: Jeffrey Rosen, President and CEO of the National Constitution Center, and Erika Lee, former director of the Immigration History Research Center at the University of Minnesota, to have a better understanding of this part of the 14th Amendment.

We will focus on the first section of the amendment, which includes the Citizenship Clause, along with three additional clauses that are closely related to it.

But first, some history

The 14th Amendment is considered a Reconstruction amendment, as it was ratified as part of the Constitution in 1868, a time of great upheaval following the Civil War. This marked a pivotal moment in American history, when the nation was grappling with the aftermath of the war and the subsequent shift from a society built on slavery to one with newly freed individuals, raising difficult and contentious racial and social issues.

Thomas Jefferson posited that all men were born equal, but the original Constitution fell short of that ideal by permitting slavery, notes Jeffrey Rosen. The 13th, 14th, and 15th amendments aimed to usher in a new era in America by confirming Lincoln’s vision of a more equal society.

The first part of the amendment states:

Unfortunately, this celebrated American value turned out to be a promise that fell short of reality. Rosen points out that problems relating to civil rights and fair treatment persisted for African Americans, LGBT individuals, and other citizens for more than a century after the amendment was adopted.

Erika Lee notes that Native Americans were denied the right to become United States citizens until the year 1925.

“It’s clear that these amendments were written with certain specific conditions and maybe rightly so at their time of creation, but that still had inherent inequities that weren’t designed to be inclusive across the board,” Lee states.

What significance has been attributed to the idea of citizenship by birthright in history?

According to Rosen, one key issue the original Constitution didn’t address was defining citizenship. At the time the Constitution was written, the idea of citizenship was already assumed, but no rules were specified to govern it. This gap was exploited in a highly criticized Supreme Court ruling, the Dred Scott decision, in which the Chief Justice stated that African Americans did not have the right to be US citizens and that the white population didn’t have to respect their rights.

The US Supreme Court’s decision in the Dred Scott case, named after a slave who fought for his own freedom in court, is now generally regarded as one of the most misguided legal decisions in the history of the United States.

The 14th Amendment was created to reverse this ruling and establish a clear definition of citizenship, focusing on birthright,” Rosen says. “It’s crucial that we have a concept of citizenship based on residency rather than ancestry, meaning anyone can become an American by embracing our Constitutional principles.

What does it mean for a person or entity to be subject to the authority and laws of a particular entity or government?

Rosen considers this to be one of the fundamental questions of citizenship. Individuals who are not subject to U.S. jurisdiction include diplomats and their families, as well as Native Americans, who were not considered part of the American population at the time of the 14th Amendment.

Rosen points out that, except in those two cases, everyone physically in the US was considered to be under its jurisdiction. Supporting this view are numerous Supreme Court decisions and a plethora of congressional laws that implicitly assume citizenship is granted by birth.

The argument has been made that individuals whose parents are undocumented immigrants are not under the authority of the United States and therefore do not qualify as citizens under the Constitution.

Rosen claims, however, that this opinion is far from widely held among constitutional scholars regardless of their political leanings.

The Supreme Court has yet to make a direct ruling on the citizenship status of immigrant children, but Congress has enacted various laws that assume they are U.S. citizens.

The relationship between birthright citizenship and immigration is quite significant. Generally speaking, birthright citizenship refers to the concept that a child born on U.S. territory automatically gains U.S. citizenship, regardless of their parents’ immigration status. This connection to immigration is important because it determines the citizenship status of children born to foreign nationals who are in the United States.

In 1898, three decades after the 14th Amendment was ratified, a landmark court case known as the United States v. Wong Kim Ark set major precedent. Wong Kim Ark, as Lee notes, was a person born on American soil to Chinese parents.

A key milestone in the history of immigration to the US came when Asian immigrants no longer fitted into the traditional mold of ‘white’ immigrants,” Lee notes. “As a result, they were treated differently than earlier waves of immigrants. Among the differences in treatment was taxation, as well as the stripping of many rights. In the 1880s, they were formally excluded from immigration and barred from acquiring US citizenship.

The central question at issue was whether a person born in the United States could be considered a citizen, even if their parents were not eligible for citizenship. The Supreme Court ruled that a person born in America can indeed be considered a citizen, setting a legal precedent that would serve as the foundation for future birthright citizenship cases.

The Supreme Court’s ruling indicated that being a citizen is not something you inherit, but rather it’s tied to where you’re born,” Lee explains. “The idea is that citizenship is about the power of place, and this perspective has expanded the definition of what it means to be American, correcting a narrower and more exclusive view that was prevalent in law and culture.

What is the purpose of emphasizing the importance of safeguarding the rights and benefits associated with being a citizen?

Prior to the Civil War, states were not required to uphold the provisions outlined in the Bill of Rights; only Congress was bound by them. The 14th Amendment rectified this situation.

The second sentence of the Amendment,” explains Rosen, “imposes on states a responsibility to uphold the Bill of Rights not just for the most basic civil rights, but also for the inherent rights that come with being a U.S. citizen. The underlying principle was that these fundamental rights are essential to citizenship and cannot be restricted by individual states.

Even with the benefits and safeguards that come with citizenship, it’s painfully evident that different racial groups are consistently viewed as incapable or undeserving of being true American citizens. This is clear when you consider that basic rights like voting and equal treatment were withheld from certain racial groups for over a century following the 14th Amendment.

people come in all shapes and sizes, and each has their own strengths and weaknesses,

Historically, individuals of Asian and Mexican descent, along with Muslim immigrants and their children, have often faced unwritten cultural expectations that occasionally restrict their full acceptance as Americans.

Lee notes that during that time, the argument made by some towards Asian immigrants was that “regardless of their birthplace, as a racial group, Asians were deemed inherently unassimilable and fundamentally opposed to the American way of life.”

“That was the same flawed logic used to justify the internment of Japanese citizens. It was a denial of citizenship based solely on racial grounds: ‘They just didn’t possess the capacity to become American and assimilate like everyone else.”

The legalization of rights for non-citizens was crucial because it marked a significant step towards acknowledging the contributions and value of individuals not born or naturalized in the country.

So far, we’ve discussed the first section, the Citizenship Clause, and the second part, the Privileges and Immunities Clause, both of which pertain to the rights and protections afforded to U.S. citizens.

The last two sections, referred to as the Due Process Clause and the Equal Protection clause, handle the civil rights of all United States citizens.

Notice that eagle-eyed readers of the Constitution will realize that the 14th Amendment includes a “due process” clause similar to the one found in the Fifth Amendment. As Rosen points out, this addition was made to avoid any technical restrictions that might limit the Fifth Amendment to only protecting American citizens.

The 14th Amendment clearly draws a distinction between the rights inherent to being a U.S. citizen versus those rights that belong to everyone, regardless of nationality,” says Rosen. “The amendment’s drafters believed that there were some fundamental rights so essential that they should be guaranteed for all individuals, and to emphasize this, they felt it was necessary to incorporate a new clause regarding due process.

Equal protection of the laws refers to the principle that all individuals, regardless of their background, status, or characteristics, have the same rights and opportunities under the law.

“That government, following the Civil War, ultimately meant that every individual has the right to be safeguarded by law enforcement, and that all citizens should be equally guarded by the laws of the nation,” says Rosen.

In the 20th century, many significant cases involving equal protection and due process were argued under the 14th Amendment, such as Brown v. Board of Education, which questioned whether segregation was constitutional, as well as cases like the internment of Japanese citizens and the landmark marriage equality decisions. Additionally, landmark cases such as Roe v. Wade have also been shaped by the concepts of equal protection and due process.

Another notable case that connects directly to the immigration aspect of the 14th Amendment discussion is the 1982 case of Plyler v. Doe, in which the Supreme Court found it unconstitutional for Texas to withhold funding from undocumented immigrant children.

Can you clarify what prompted this conversation?

On Monday, during his first day back at the White House, he spoke about reforming immigration policies, specifically mentioning an end to automatic citizenship for children born on US soil. According to the Constitution, any such change would necessitate either a constitutional amendment or a judicial decision.

Donald Trump’s support for repealing birthright citizenship isn’t a brand new concept. He brought it up years ago during the start of his first term and it actually has its roots in an ongoing effort by the right to revise the US citizenship process that began over three decades ago, roughly around the same time when modern American conservatism started gaining popularity.

Some individuals, like Lee, think that abolishing birthright citizenship could have results beyond just affecting children of undocumented immigrants. Those here on valid work or student visas may worry about their kids’ nationality, essentially leaving them with no clear country to call their own.

“There have been efforts since the 1990s to limit or modify birthright citizenship, but it seemed those efforts wouldn’t gain traction until now,” she says.

“This revelation reveals a disturbing trend of the far right gaining ground and an unfortunate shift back to an overly strict and discriminatory perception of what it means to be American.”


Brandon Griggs, contributing editor from TPLinkFI.com, assisted with this report.

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