Is birthright citizenship protected under the Fourteenth Amendment?

Question

I remember the citizenship clause of the United States being present in the 14th Amendment. Would changes to birthright citizenship require a formal amendment to the US Constitution?

Answer 1

Every court that has addressed this question since the 14th Amendment was adopted, including the U.S. Supreme Court, has held that all children born in the United States who do not have diplomatic immunity are citizens of the United States.

Lower court judges that have addressed the question have further decried the contrary position taken by U.S. Justice Department attorneys on behalf of the Trump Administration to be advancing frivolous legal arguments.

The near unanimous opinion of legal scholars and legal experts is that this can only be changed by a constitutional amendment. There were not even any law review articles suggesting a contrary position until well over a century after the 14th Amendment was adopted.

Answer 2

The line in question is

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.

And the important part is the bolded section.

This definitely excludes ambassadors' children who happen to be born here. The question is whether it excludes anyone else, which is exactly what is debated.

One notes that the much cited Wong Kim Ark was about the child of legal immigrants who had made their permanent residence here.

Answer 3

As a practical matter, birthright citizenship is protected by law. A person born outside the United States, who has a parent who is a United States citizen, is a citizen at birth by law, even though the condition, "born in the United States," does not apply.

Section 5 of the Fourteenth Amendment required Congress to create a law for those cases of persons "born in the United States."

Fourteenth Amendment, Section 5:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Why law?

As of March 4, 1789, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; [...], shall be the supreme Law of the Land; [...]. [Article VI, Clause 2.] Essentially, common law became inferior to laws passed by Congress. It follows that common law may be used to understand certain words and phrases used in the Constitution, but if Congress passes a law replacing the common law understanding of a term with one of its own choosing, the law must prevail.

Therefore, under Sec. 5 of the Fourteenth Amendment, if Congress were to define "subject to the jurisdiction [of the United States]" to include only citizens and lawful permanent residents, and exclude those temporarily present in the United States, that will become the Law of the Land.

Jus soli was never the rule by Congress

For more than 70 years, the granting of citizenship to children was by jus sanguinis. In the first emboldened part of the Naturalization Act of 1802^[1] (shown below), there was no distinction between children born in the United States and those born elsewhere. Children under the age of twenty-one became naturalized with their parents. The second, emboldened part shows that jus sanguinis (the principle of descent through the father's blood) was the prevailing rule.

In the Civil Rights Act of 1866, Congress dropped jus sanguinis to allow born in the United States and not subject to a foreign power. The latter condition denies jus soli.

Thus, by law, Congress created a definition for citizenship that was neither jus sanguinis nor jus soli. And, by law, they can do the same for enforcing the provisions of the Fourteenth Amendment, should they choose to do so.

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Naturalization Act of 1802

Sec. 4. And be it further enacted, That the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject, by the government of the United States, may have become citizens of any one of the said states, under the laws thereof, being under the age of twenty-one years, at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States: Provided also, that no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain, during the late war, shall be admitted a citizen, as aforesaid, without the consent of the legislature of the state in which such person was proscribed.

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¹ The Naturalization Acts of 1790 and 1795 contain similar wording.

Answer 4

It would be best to have a constitutional amendment. The 14th amendment was only intended to ensure that the former slaves and their children were citizens, regardless of any prior law or court decisions. It goes hand-in-hand with the 13th amendment that freed the slaves, and the wording of it is vague and poor, because this was a sensitive issue; the government doesn't like to admit it was wrong for nearly 100 years. It could have said, "All the black people now in the USA and their descendants are citizens of the USA" but that was out of the question.

An act of Congress trying to interpret the 14th in a different way would likely be met by more challenges in the courts relying on Wong Kim and other decisions that only address the text and not the context.

Answer 5

The line in question is

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 line refer to peoples who are indeed above the law on the ᴜꜱ soil or peoples living outside, such as Indians (at least in legal theory). Ambassadors enjoy legal immunity until their legal immunity is upheld. This is the result of such immunity that is the lack of jurisdiction. This doesn’t apply to aliens who can face courts for anything illegal they commit.

A broader way to view the lack of jurisdiction thereof is about black descendants : before the civil war, it was widely seen that the constitution doesn’t apply to African americans free or slave, which was how they couldn’t claim rights from the bill of right which was explained in Dred Scott v. Sandford. If Congress or president can make the judiciary interpret the lack jurisdiction thereof in such a broad way, then the same reasoning can be applied to deny citizenship to black desdents thereby nullifying the original intent of the amendment.

An alternative to avoid modifying the constitution would be to give legal immunity to babies that are considered to live from birth tourism. In practice, since newborns can’t commit felonies or crimes, this would make denying the citizenship lawful. The matter would be then to expel them before they reach the age of being able to commit crimes.

So no, changes to birthright citizenship wouldn’t require updating the constitution but would still likely require a law instead of an executive order.