This should have been posted in February 2025.
On December 6, 1865, eight months after the conclusion of the American Civil War, the American people ratified Thirteenth Amendment of the Constitution, officially ending slavery in this country.
Despite freeing the enslaved population, the new amendment created a new problem: what would be the legal status of this population. Would each state decide their status? Would they be deported?
Congress decided to enact the Civil Rights Act of 1866. This act extended citizenship to the formerly enslaved. The Fourteenth Amendment was not far behind.
President Trump has issued an executive order ending automatic Birthright Citizenship.
We should be more specific on what he wants to end. Currently, the United States grants citizenship to anyone born in the U.S. soil, except to children of foreign ambassadors and enemy soldiers. Trump wants to stop offering citizenship to those children born to temporary visitors and to children born to illegal aliens. Much of the public’s focus is on the latter.
Trump states he will be able to accomplish this through executive action, meaning that he alone as president can enforce the law consistent with the way he interprets it. The law in question is the Fourteenth Amendment of the U.S. Constitution. Specifically, the first sentence of the amendment, known as the Citizenship 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.
When most people read that sentence, it sounds like if someone is born here, that someone is a citizen of this country. However, as mentioned above, children of foreign ambassadors born on U.S. soil are not citizens of this country. The Citizenship Clause excluded some people from receiving birthright citizenship, as we can see in the often-ignored phrase and subject to the jurisdiction thereof that defines those included and excluded classes when allowing birthright citizenship. The question then becomes the meaning of the phrase subject to the jurisdiction thereof. The answer is found in the Civil Rights Act of 1866, enacted two months before Congress proposed the Fourteenth Amendment.
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . .
After Congress passed the Civil Rights Act of 1866, there was concern that Congress lacked constitutional authority enact the legislation. There was also concern that a future Congress could repeal the act. Because of these concerns, Congress proposed the Fourteenth Amendment.
The similar language in the citizenship clauses in the amendment and the act was no coincidence. Given the similar wording, subject to the jurisdiction thereof, in the amendment, means that one is not subject to or have any allegiance to a foreign power. The Civil Rights Act of 1866 also excludes American Indians (those who belonged to tribal nations and were not subject to the jurisdiction of the United States) from birthright citizenship.
When the Fourteenth Amendment was ratified in 1868, the classes excluded from automatic birthright citizenship were children born to: foreign ambassadors, enemy soldiers, all other foreign nationals with allegiance to another nation, and American Indians.
Today we face with a category not specifically addressed in the 1860s and that category is illegal aliens. Should children born to an illegal alien on U.S. soil receive automatic birthright citizenship? Since we cannot ask those who voted to propose the amendment or those who voted to ratify it, we must use judgment to answer the question.
Both the Civil Rights Act of 1866 and the Fourteenth Amendment were primarily concerned about defining American citizenship. The key reason for addressing this was Dred Scott v. Sandford, an 1857 Supreme Court case that stated, among other things, that African-descended people could never be citizens of the United States, whether enslaved or free. The Fourteenth Amendment overturned this decision. In 1868, the clear understanding was that the children of American blacks would be granted citizenship from birth.
As already stated, those barred from birthright citizenship include the children of foreign ambassadors, American Indians, and enemy soldiers. We have invited foreign ambassadors to live in the country while serving in that capacity. The government allowed American Indians to stay in the country, albeit on reservations. We clearly did not want enemy soldiers on U.S. soil. In all three categories, we deny birthright citizenship to children born in the United States.
We have on the one hand white and black Americans, whose children are granted citizenship and on the other hand foreign ambassadors, American Indians, and enemy soldiers whose children are not.
Illegal aliens are, by definition, not Americans but are neither ambassadors, nor American Indians, nor enemy combatants. Where on the spectrum should illegal aliens fall? Illegal aliens, also by definition, have no legal right to be on American soil, as they were not invited. It makes the most sense that they fall between ambassador and American Indians on the one hand and enemy combatants on the other. It would be incoherent to grant birthright citizenship to the children to illegal aliens and deny automatic birthright citizenship to the children of ambassadors and American Indians.
In 1898, however, the Supreme Court, in the case of United States v. Wong Kim Ark, decided that a child born to parents who are not U.S. citizens but are legal permanent residents is entitled to birthright citizenship.
What should be clear though is that the Citizenship Clause is more about who is not entitled to birthright citizenship than who is entitled to it.
This is the position the Trump Administration should take. It is both logical and constitutional. The Citizenship Clause is self-executing, meaning the president has the authority to enforce the clause. Congress neither needs to write a law to give the president the authority to enforce Section 1 of the Fourteenth Amendment nor does Congress need to a propose a new amendment to address this issue.
Trump has declared that the United States will no longer recognize birthright citizenship, so the American Civil Liberties Union, along with other groups, challenged this declaration legally. This battle will find its way into federal court and one day, the Supreme Court.
It is difficult to know how the Court will decide such cases. When Trump was in office, he wanted to end birthright citizenship, but ultimately did not. Likely, he received advice from his team that a Supreme Court challenge might not go his way given the Court’s makeup.
During that term, however, he managed to get the U.S. Senate to confirm all three of his nominees to the high court, including Justice Amy Coney Barrett, who was installed shortly before his term ended. My guess is that Trump and his advisors like his chances now to have the Supreme Court endorse his reading of the Citizenship Clause of the Fourteenth Amendment of the Constitution.
It is worth noting that to extend citizenship to the children of illegal aliens in light of the experience of blacks in America is offensive and fails to grasp basic facts of history. The ancestors of American blacks were brought here against their will and kept here against their will. Many of them and their descendants through their “unrequited toil” became the backbone of the Southern economy. Some even served on both sides of the American Revolutionary War and on both sides of the American Civil War.
Unlike American blacks, illegal aliens have no historical connection to American traditions, whether economic, linguistic, cultural, or military. In short, American blacks are Americans. They were Americans before they were citizens because they were Americans before they were free.