President Trump is preparing an executive order aimed to abolish birth-right citizenship (The New York Times). In substantive terms, President Trump seeks to negate the language in the 14th Amendment that declares, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” Ill-informed talk radio commentary notwithstanding, any such executive order would very likely be struck down in judicial review.
The dubious legal commentary being advanced over talk radio and echoed among President Trump’s supporters is based on Senator Jacob Howard’s (R-WI) opening words upon his introducing Joint Resolution 127, which would become the 14th Amendment, in the U.S. Senate. Senator Howard explained:
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons.
The flawed legal conclusion concerning the potential executive order is based on an unsustainable deconstruction of the English language. Senator Howard did not exclude “foreigners” and “aliens” and children “who belong to the families” of diplomats. He excluded the children of “foreigners” and “aliens” who “belong to families of ambassadors or foreign ministers…”
If he meant otherwise, he would have included the conjunction “or” in his words, stating, “…foreigners, aliens, or who belong to the families of ambassadors or foreign ministers…” He didn’t. That was no oversight. Further, he made clear that his view on birth-right citizenship was “declaratory,” and did not represent a change in the nation’s laws concerning citizenship.
At the time the 14th Amendment was adopted in 1868, the principle that one’s birth in the United States conferred citizenship was firmly established in American legal thinking. The 14th Amendment was aimed at embedding that principle in the Constitution to protect the newly-liberated slaves from political disenfranchisement and to assure that children born of immigrant populations elsewhere in the country could not be stripped of the rights and privileges of American citizenship by state governments.
American legal thinking on birth-right citizenship reflected a view anchored in English common law that dated back to 1608. In the seminal decision in Calvin v. Smith, an English court ruled that a person’s citizenship was bestowed at birth. Judge Edward Coke wrote:
A man born in Scotland after the accession of King James the First to the English throne, and during his reign, may hold lands in England…
The question of this case as to matter in law was, whether Robert Calvin the plaintiff(being born in Scotland since the Crown of England descended to His Majesty) be an alien born, and consequently disabled to bring any real or personal (a) action for any lands within the realm of England…
By all which it evidently appeareth, that they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens…
There is found in the law four kinds of ligeances; the first is, ligeantia naturalis, absoluta pura, et indefinite, and this originally is due by nature and birth-right, and is called alta ligeantia, and he that oweth this is called subditus natus… Wherefore to conclude this point (and to exclude all that hath been or could be objected against it) if the obedience and ligeance of the subject to his sovereign be due by the law of nature, if that law be parcel of the laws, as well of England, as of all other nations, and is immutable, and that postnati and we of England are united by birth-right, [7-Coke-14 b] in obedience and ligeance (which is the true cause of natural subjection) by the law of nature; it followeth that Calvin the plaintiff being born under one ligeance to one King, cannot be an alien born…
The understanding that one’s place of birth automatically made one a citizen of that country was adopted in the American Colonies and retained after their independence. The editor’s response to the daily question posed to the San Francisco Daily Evening Bulletin reflected that understanding. The question and the editor’s answer from the September 4, 1867 edition of that newspaper follow:
Question: “Is the child of an American citizen, born in Europe, an American citizen?”
Editor’s Response: “No; unless, at the time of its birth, the parents are traveling, or the father is a resident agent of the United States Government. The rule is that every person born in a country is a subject or citizen of that country. The exceptions are those above stated.”
The Native American or American Indian population as it was called then, was excluded. At that time, Native Americans were viewed as the subjects of sovereign tribes who resided on American soil. During the Senate’s debate, Illinois Senator Lyman Trumbull explained:
The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” …What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them.
Further, the 14th Amendment was not solely limited to the children of freed slaves, even as they were a prime beneficiary. Senator Howard told the Senate, “We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen… who would pull the whole system up by the roots and destroy it…”
Notice, unlike with his earlier exclusionary language on birth-right citizenship, in this case, Senator Howard used a conjunction (“and”). The framers of the 14th Amendment intended to guarantee the rights of citizenship to the children of a population that included more than the recently freed slaves.
Based on the understanding of birth-right citizenship when the 14th Amendment was adopted, the children born of undocumented immigrants resident in the United States would become American citizens by virtue of their birth. That understanding went back to English common law that shaped American legal thought, both before and after American Independence. Undocumented immigrants meet none of the conditions by which birth-right citizenship would be excluded. They are not foreign diplomats. They are not travelers. They come to the United States, even if in a fashion inconsistent with the nation’s immigration laws, to work and/or build lives in the United States.
Therefore, President Trump cannot end birth-right citizenship through an executive order. Any such executive order will very likely be struck down during judicial review. Instead, a constitutional remedy, likely an Amendment, would be required. As such an amendment would require two-thirds support in both Houses of Congress and then ratification by three-fourths of the states, birth-right citizenship is likely to remain the law of the land for the foreseeable future.