Multi-American | How immigrants are redefining 'American' in Southern California

A guide to birthright citizenship and the 14th Amendment

A child participates in a parade of flags, October 2010
A child participates in a parade of flags, October 2010
Photo by Cliff 1066/Flickr (Creative Commons)

The discussion over whether the United States should grant automatic citizenship to everyone who is born here isn't necessarily a new one, but in recent months, it's moved beyond talk.

In the past month, a couple of different legislative approaches have emerged to ending what is now a constitutional right under the 14th Amendment, affirmed by a landmark 1898 Supreme Court case that came out of California. One is a federal House bill that proposes a change to immigration law, introduced in early January by Republican Rep. Steve King of Iowa; another, less orthodox approach involves a coalition of conservative state legislators who plan to introduce bills at the state level that they hope will land in court, forcing a new Supreme Court review and, they hope, a reinterpretation that would deny citizenship to children of undocumented immigrants.

Today, Arizona lawmakers in both state legislative houses will be introducing their version of a model bill, unveiled earlier this month by a group of anti-birthright citizenship state lawmakers in Washington, D.C., which proposes distinguishing between the babies born to undocumented immigrants and other infants in state-issued birth certificates. Indiana, which doesn't get as much coverage on the immigration front as Arizona, has already beat them to it, with state Rep. Eric Koch introducing a version of the model bill last week.

So just what is the 14th Amendment, and what does it guarantee to those born in this country? Here is the text of Section 1, which lies at the heart of the challenge:

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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 14th Amendment was one of three changes to the Constitution during and after the Civil War era known as the Reconstruction Amendments. The 13th abolished slavery, the 15th prohibited the states from denying the vote to anyone based solely on race. The 14th was ratified in 1868. Among other things, it reversed a decision made by the Supreme Court more than a decade earlier in Dred Scott v. Sandford, which had held that people of African descent, at the time still enslaved, could not be U.S. citizens.

The Gilder Lehrman Institute of American History’s website has a detailed article from a Columbia University history professor on how the 14th Amendment came to be, placing it in historical context:

…the Fourteenth Amendment was the most important constitutional change in the nation’s history since the Bill of Rights. Its heart was the first section, which declared all persons born or naturalized in the United States (except Indians) to be both national and state citizens, and which prohibited the states from abridging their “privileges and immunities,” depriving any person of life, liberty, or property without due process of law, or denying them “equal protection of the laws.”

In clothing with constitutional authority the principle of equality before the law regardless of race, enforced by the national government, this amendment permanently transformed the definition of American citizenship as well as relations between the federal government and the states, and between individual Americans and the nation.

The biggest legal challenge to date involving the14th Amendment on the immigration front, which set the stage for what's occurring now, came in the late 1800s following the Chinese Exclusion Act of 1882. It involved a young Chinese American man born in San Francisco was barred from re-entering the country after a trip to China to visit his parents, who had moved back after 20 years in the United States.

United States v. Wong Kim Ark eventually went to the Supreme Court, which decided in 1898 that based on Section 1 of the 14th Amendment, Wong was indeed a citizen. From the decision:

It is conceded that, if he is a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution,

“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.”

The argument for revising how the 14th Amendment is interpreted is tricky, hinging on the term "subject to the jurisdiction thereof." In an interview published yesterday on the Council on Foreign Relations website, legal expert Margaret Stock explained:
Previously, "subject to the jurisdiction" meant subject to the law of the United States. If somebody was born in the United States and their parents were subject to the laws of the United States, then the person would become an American citizen.

There have been a variety of proposals [by conservative lawmakers] to reinterpret "subject to the jurisdiction," so it doesn't include anybody who's not a citizen or lawful permanent resident. For example, a foreign student who comes to the United States to attend college would not be considered subject to the jurisdiction of the United States for purposes of the citizenship of a child born to that student. That is a radical change. The State Department has never interpreted the fourteenth amendment that way; no court has ever interpreted the fourteenth amendment that way.

One argument of anti-birthright citizenship advocates is that in the Wong Kim Ark case, his parents were ostensibly here legally at the time of his birth (although in 1882, they and other Chinese immigrants were stripped of their rights and barred from naturalizing by the Chinese Exclusion Act, which made most immigration from China illegal).

Kris Kobach, an attorney and anti-illegal immigration activist (and now Kansas secretary of state) who helped draft the model bill, along with Arizona's SB 1070, cited the Wong Kim Ark case in an interview with the National Review:

To Kobach, it is “nonsensical” to understand “subject to the jurisdiction thereof” as meaning anything other than that at least one of the parents must be a citizen of, or at least legally residing in, the United States. Talking about United States v. Wong Kim Ark, the Supreme Court decision in 1898 that many view as having settled that all babies born in the U.S., regardless of parenthood, are citizens, Kobach points out that Wong Kim Ark was the son of Chinese immigrants legally living in this country at the time of his birth.

“There are two very powerful reasons why I think the majority of the Supreme Court would agree with us. And one is that every ounce of evidence of original intent says that our understanding is correct,” says Kobach, remarking that the framers of the Fourteenth Amendment intended that birthright citizenship be given only to children whose parents had no allegiance to a different country.

For the record, the United States is one of several countries, among them Canada, where jus soli (Latin for "right of the soil") citizenship is automatic for those born in the territory. But many other countries have a system of jus sanguinis (Latin for "right of blood") citizenship, among them several European nations, which bestow citizenship only on children born to a national of that country.

This week and next, Multi-American will continue to examine the battle over birthright citizenship, what its implications are and what happens next.