Read our new brief on birthright citizenship here.

When Joe Biden selected Kamala Harris as his vice-presidential running mate, law professor John Eastman, writing for Newsweek, claimed that Harris was ineligible, not only for the vice presidency, but also for her senate seat as well. She was not a citizen at all, he argued, despite being born in the United States.

The claim that birthright citizenship is not a constitutional guarantee is not new. Trump administration officials and congressional allies have claimed that the practice can be ended without amending the constitution, by a simple act of congress or even an executive order. As we explain in our latest policy essay, this argument contradicts the text of the Fourteenth Amendment, long-standing precedent, and the vast consensus among legal scholars, including originalists.

The Fourteenth Amendment to the U.S. Constitution established birthright citizenship in the United States in the aftermath of the Civil War. The amendment’s Citizenship Clause states that “[a]ll 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.” And the clause finds its statutory expression in the Immigration and Nationality Act (INA), which echoes the amendment, providing that “a person born in the United States, and subject to the jurisdiction thereof” shall be a national and citizen of the United States at birth. 

Opponents of birthright citizenship claim that children born in the United States are not necessarily “subject to the jurisdiction thereof” if their parents are not citizens. Hence, the Citizenship Clause does not entail birthright citizenship. 

The plain reading of “subject to the jurisdiction” would include such children, since nearly anybody present in the United States is subject to U.S. law (exceptions are limited to diplomats with diplomatic immunity, members of sovereign Indian nations, and occupying enemy armies). 

But, birthright citizenship skeptics would have the phrase refer narrowly to political jurisdiction. However, the phrase was never understood to refer only to political jurisdiction. When the Citizenship Clause was added to the proposed Fourteenth Amendment, opponents dissented because it would confer birthright citizenship,  while proponents explained that birthright citizenship was desirable. Nobody disputed the fact that the proposed language would, in fact, grant birthright citizenship to the children of immigrants. 

When, in 1898, the Supreme Court took up the case of Wong Kim Ark, born in San Francisco to Chinese immigrants and excluded from reentering the United States under the Chinese Exclusion Act, it ruled decidedly in favor of Wong Kim Ark’s rights as a citizen and firmly establishing that the Citizenship Clause applies to children born in the United States to aliens. “Every citizen or subject of another country, while domiciled here,” the opinion reads, “is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”

Birthright citizenship skeptics think that Wong Kim Ark was wrongly decided and should be overturned. Instead, they point to purported precedents in the Slaughterhouse Cases (1873) and Elk. v. Wilkins (1884). But neither goes to the heart of the Citizenship Clause. In Slaughterhouse, skeptics point to one ambiguous sentence in dicta—an incidental opinion not essential to the decision—and is therefore not binding as precedent. Further, the reference contradicts another sentence in the same opinion, which states that “it is only necessary that [a person] should be born or naturalized in the United States to be a citizen of the Union.” 

In any case, in Wong Kim Ark, the opinion by the Supreme Court dismissed the reference.  It noted that the imprecise language of the sentence at issue detracted from any weight that should be placed on it and added that “it was unsupported by any argument, or by any reference to authorities.” 

Skeptics also point to Elk as demonstrative of the Supreme Court denying citizenship to John Elk, even though he was born in the United States. But Elk was born on an Indian reservation, and not subject to U.S. jurisdiction, but rather to that of the tribal government. Of course, tribal jurisdiction has nothing to do with the status of the children of immigrants.

Birthright citizenship has been the law of the land since at least 1868. Any attempt to end it would require a constitutional amendment, but substantive policy reasons should halt any discussion of doing so. Birthright citizenship generates economic benefits for the children of immigrants born in the U.S.,  as well as those born to natives, while also encouraging assimilation by integrating new populations into the social and political life of the country. And claims that the practice attracts “birth tourism” are unfounded, as the latest data show that the scale of birth tourism is statistically indistinguishable from zero. 

Birthright citizenship has come under threat by legal challenges, proposed legislation, and proposed executive orders to define birthright citizenship out of the Citizenship Clause. These efforts will almost certainly fail on legal grounds. But widespread perceived illegitimacy of birthright citizenship is a threat of its own, which can be averted only by understanding its history and its benefits.

Photo Credit: NARA via Wikimedia Commons