Supreme Court to Rule on Birthright Citizenship

The Supreme Court will hear a historic case on Wednesday that could redefine who qualifies as a U.S. citizen. The case centers on President Trump’s challenge to the constitutional provision guaranteeing citizenship to nearly all children born in the United States.

The Origins of the Dispute

President Trump initially challenged the practice through an executive order, attempting to bar automatic citizenship for children born in the U.S. to parents who entered the country illegally or were in the country on temporary visas. He stated, “We are the only country in the world that does this with birthright,” and called the practice “absolutely ridiculous.”

Global Practices of Birthright Citizenship

However, this claim is inaccurate. Approximately 33 countries, including Canada, Mexico, Brazil, and Argentina, currently practice birthright citizenship.

Historical Context of the 14th Amendment

The debate over birthright citizenship dates back to the nation’s founding. University of Virginia law professor Amanda Frost notes that the colonists were largely pro-immigrant, and early complaints against British rule included discouraging immigration. After the Revolutionary War, even those loyal to the British crown were granted U.S. citizenship.

The Post-Civil War Era and the 14th Amendment

Birthright citizenship wasn’t formally enshrined in the Constitution until after the Civil War with the passage of the 14th Amendment. This amendment aimed to overturn the Supreme Court’s 1857 Dred Scott decision, which denied citizenship to people of African descent. The 14th Amendment states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”

Trump’s Interpretation and Legal Challenges

President Trump argues the 14th Amendment was originally intended to apply specifically to formerly enslaved people. He stated, “This was meant for the slaves… for the children of slaves,” adding that it wasn’t intended to grant citizenship to anyone born in the U.S.

Framers’ Intent and Broader Inclusion

Professor Frost argues the framers of the 14th Amendment had broader goals, including establishing a clear definition of citizenship, granting citizenship to formerly enslaved people, and including immigrants. She points to the large influx of Irish immigrants in the mid-19th century, noting that their children would automatically become American citizens after the amendment’s ratification.

Legal Arguments and Entrenched Precedent

Cecillia Wang, legal director of the American Civil Liberties Union, contends that the President’s executive order attempts to radically rewrite the 14th Amendment. The principle of birthright citizenship has remained largely unchallenged, even during periods of increased deportations.

The Wong Kim Ark Case

A key case supporting birthright citizenship is Wong Kim Ark (1898). The Supreme Court ruled that all children born in the U.S. are automatically granted citizenship, interpreting “subject to the jurisdiction thereof” to include all individuals born within U.S. territory. The court specified exceptions for children of diplomats, occupying armies, and Native American tribes.

Current Administration’s Arguments

The Trump administration argues that Wong Kim Ark’s situation differs from many current cases, as his parents were legally residing in the U.S. They also argue that allegiance to the nation is a prerequisite for citizenship, suggesting that unauthorized entry constitutes a lack of allegiance.

Counterarguments and Potential Consequences

The ACLU’s Wang argues the 14th Amendment’s framers intentionally focused on the child’s status, not the parent’s. She emphasizes the principle of not punishing children for their parents’ actions. Senator Ted Cruz and other GOP lawmakers support the President’s position, arguing that birthright citizenship incentivizes illegal immigration.

Concerns About Statelessness and Humanitarian Impact

Critics warn that overturning birthright citizenship could lead to a permanent underclass of stateless individuals. The U.S. Conference of Catholic Bishops expressed concern about the impact on children born in the U.S. to undocumented parents, potentially leaving them without any country to call home.

Additional Concerns: National Security and Birth Tourism

The Trump administration also raised concerns about potential national security threats and “birth tourism,” where individuals travel to the U.S. specifically to give birth to a U.S. citizen. While birth tourism exists, estimates suggest it involves a relatively small number of cases.