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Despite what some legal scholars are claiming, the citizenship clause of the 14th Amendment does not extend citizenship to children born in the United States whose parents are illegal aliens, or for that matter, lawful aliens such as tourists or foreign diplomats.
That includes our good friend, Professor John Yoo. On Dec. 10, he published an op-ed insisting that arguments for a more limited interpretation of the citizenship clause must “disregard the plain text of the Constitution, the weight of the historical evidence from the time of the 14th Amendment’s ratification and more than 140 years of unbroken government practice and judicial interpretation.”
Supporters of birthright citizenship ignore the contrary evidence that shows their interpretation is wrong. The language in the citizenship clause of the 14th Amendment says “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens.
Yet Yoo and others claim anyone born in the U.S. is a citizen, no matter the legal status of their parents. They dismiss any contrary position as a modern reinvention promulgated by a few outlier academics at the Claremont Institute. But there are many other scholars who have added their voices to a growing body of scholarship that runs counter to that preferred interpretation.
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In recent years we, as well as other respected legal scholars like Professors Kurt Lash, Ilan Wurman, Randy Barnett, and Samuel Estreicher, have produced substantive research that significantly undermines the birthright citizen claim.
Supporters cite the 18th-century English jurist William Blackstone regarding the common-law rule on citizenship. But they omit any mention of prominent American jurist Joseph Story, who wrote in his 1834 legal treatise that one “reasonable qualification” on the common law rule would be to exclude the U.S.-born children of aliens who are only temporarily present in the country.
Also, glaringly absent from most analyses is the Civil Rights Act of 1866 in which Congress first defined the limits on birthright citizenship and which served as the basis for the 14th Amendment. That statute made citizens only of persons born in the United States and “not subject to any foreign power.”
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Sen. Lyman Trumbull — a principal author of the act’s citizenship clause and a sponsor of the 14th Amendment — explained that Congress intentionally crafted this language to exclude the U.S.-born children of parents who owed the nation only a qualified and temporary allegiance under the common law rule. That applies to all children born of alien parents who owe their primary and permanent political allegiance to their native land, not the U.S.
True, the 14th Amendment employs different language. The legislative history, however, makes it clear that the change wasn’t to abrogate the Civil Rights Act, but to more adequately exclude Native Americans who were not considered U.S. citizens even though they were born in America until the passage of the Indian Citizenship Act in 1924. Why? Because, said the Supreme Court in 1884 in Elk v. Wilkins, they owed their “immediate allegiance” to their tribal governments, not the United States.
As Sen. Reverdy Johnson, another sponsor of the 14th Amendment explained, Congress understood that “subject to the jurisdiction thereof” constitutionalized precisely the same principles of citizenship found in the Civil Rights Act: “All that this amendment provides is, that all persons born in the United States and not subject to some foreign power … shall be considered as citizens of the United States.”
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Moreover, Congress re-enacted the Civil Rights Act verbatim in 1870, and for 70 years, both courts and scholars understood that the two definitions were consistent and complementary. Yoo never mentions this history.
Also not mentioned are any of the influential stalwarts of American legal commentary who, in the decades following ratification, interpreted the citizenship clause’s jurisdictional language in a manner now dismissed as “misreading” the phrase “subject to the jurisdiction thereof.” Perhaps, famed jurist Thomas Cooley got it wrong when he explained that phrase “meant that full and complete jurisdiction to which citizens generally are subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.” But this would seem worthy of substantive rebuttal rather than silence.
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Also, glaringly absent from most analyses is the Civil Rights Act of 1866 in which Congress first defined the limits on birthright citizenship and which served as the basis for the 14th Amendment.
In the same vein, Yoo insists that his view is consistent with “more than 140 years of unbroken government practice.” This is curious, given early executive branch decisions denying citizenship claims on behalf of U.S.-born children based on their parents’ immigration status.
In the 1885 case of Richard Greisser, his German father and Swiss mother never became permanent U.S. residents and returned to Germany with the toddler. Secretary of State Thomas Bayard concluded that Greisser had been born “subject to a foreign power” and not “subject to the jurisdiction of the United States,” despite having been literally born on U.S. soil. Similarly, in Mary Devereaux’s 1890 case, the Department of Justice determined that because Devereaux was ultimately denied entry to the United States, her U.S.-born daughter was not an American citizen, either.
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And we should not neglect to mention the famous Slaughter-House cases of 1873 in which the Supreme Court said this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Perhaps five justices will agree with the modern misinterpretation of the citizenship clause that supporters are urging. But to do that, they will have to ignore the historical evidence on the proper application of the citizenship clause, which does not render those born of parents who are illegally in this country citizens of the United States.
Hans von Spakovsky is a former senior legal fellow at The Heritage Foundation.
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