Debate Desk
Is Birthright Citizenship for Every Child Born Here Settled Law?
The 14th Amendment grants citizenship to those born here and subject to its jurisdiction; what that means for illegal entrants is argued.
The claim
The Fourteenth Amendment begins, "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." Defenders of universal birthright citizenship say the text is plain, that United States v. Wong Kim Ark (1898) confirmed it, and that a century of practice settles it.
The answer in three points
- The key words are "subject to the jurisdiction thereof." The authors of the amendment in 1866 explained that these words excluded some people born on American soil, such as the children of foreign diplomats and members of tribes under separate sovereignty. The argument is over how far that exception reaches.
- Wong Kim Ark (1898) held that a child born here to lawfully resident parents was a citizen. The Court has never squarely decided the status of a child whose parents are present illegally or temporarily, so the question is open in a way that supporters of the settled view sometimes ignore.
- Conservatives are divided. Some scholars read the clause to cover almost everyone born here. Others argue that Congress may define "jurisdiction" more narrowly. Most European democracies do not grant citizenship by birth alone, which shows that the rule is a choice and not a law of nature.
The numbers
- The Fourteenth Amendment was ratified in 1868, according to the National Archives.
- United States v. Wong Kim Ark was decided by the Supreme Court in 1898 and addressed the child of Chinese parents who were lawfully residing in the country.
- The Congressional Research Service has noted in its reports on birthright citizenship that the Supreme Court has not squarely ruled on children of unlawfully present parents.
What they will say next
"A hundred and fifty years of practice." Practice by the executive branch is not a holding of the Court, and it does not settle the meaning of the text. Courts decide the question, and the outcome should follow the evidence of original meaning.
"Ending it would create a stateless underclass." That would depend on the design of the law. A policy that tied citizenship to the legal status of a parent would require clear rules and is a reason for caution and a statute, not for ruling out debate.
"It is in the Constitution, so only an amendment can change it." If the Court reads the clause broadly, yes. If it reads "jurisdiction" as the framers described it, a statute might suffice. The question deserves serious argument rather than assumptions.
"The idea is un-American." Reasonable Americans have held both views. This is a legal disagreement, and it should be settled by reading the text and history with care.
The prudent course is to read the text, read the 1866 debates and the Court's opinions, and decide for yourself.