Trump’s Birthright Citizenship: Liberal Scholars’ Influence
- The Fourteenth Amendment, ratified in 1868, fundamentally reshaped American citizenship.
- during Senate debates in 1866, Senator Lyman Trumbull of Illinois clarified that the phrase "subject to the jurisdiction thereof" was intended to exclude members of Native American tribes...
- Wong Kim Ark established a significant precedent regarding birthright citizenship.
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The Fourteenth Amendment’s Citizenship Clause: A Ancient and Legal Debate
origins and Initial Interpretation (1866-1898)
The Fourteenth Amendment, ratified in 1868, fundamentally reshaped American citizenship. Its Citizenship Clause, stating that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” has been a source of ongoing legal and political debate, particularly regarding its submission to individuals born to unauthorized immigrants. The amendment emerged from the Reconstruction era following the Civil War, aiming to secure rights for formerly enslaved people and redefine national identity. Initial discussions surrounding the clause, however, centered on the status of Native Americans.
during Senate debates in 1866, Senator Lyman Trumbull of Illinois clarified that the phrase “subject to the jurisdiction thereof” was intended to exclude members of Native American tribes from birthright citizenship, as they where considered under the jurisdiction of their own tribal governments, not the full authority of the United States Cornell Law School, Fourteenth Amendment. He also specified that children of foreign diplomats and those born to opposed occupying forces were similarly excluded.This original understanding focused on complete political allegiance and recognition by the U.S.government.
U.S. v. Wong Kim ark and the Established Precedent (1898)
The Supreme Court’s 1898 decision in U.S. v. Wong Kim Ark established a significant precedent regarding birthright citizenship. the Court ruled that Wong Kim Ark, born in the United States to Chinese immigrant parents who were lawfully residing in the country, was a U.S. citizen by virtue of the Fourteenth Amendment Justia, U.S.v. Wong Kim Ark. The Court interpreted “subject to the jurisdiction thereof” as encompassing all persons within U.S. territory, except those specifically exempted, such as foreign diplomats and hostile occupying forces.
This ruling solidified the principle of *jus soli* (right of soil) in American law, meaning that birth within U.S. territory generally confers citizenship, regardless of the parents’ immigration status. However, the Wong Kim Ark case specifically addressed the situation of parents who were legally residing in the U.S., leaving open the question of whether the same principle applied to those present without authorization.
A Re-Examination: Schuck and Smith’s Argument (2006)
In 2006, legal scholars Peter Schuck and Roger Smith published an article challenging the prevailing interpretation of the Fourteenth Amendment’s Citizenship Clause Berkeley Law Scholarship Repository, “Birthright Citizenship and the Fourteenth Amendment”. They argued that the original intent of the framers, as evidenced by the Senate debates, was to grant citizenship only to those born within the U.S.who were also under the complete political allegiance of the nation – a condition not met by individuals whose parents were unlawfully present.
Schuck and Smith posited that the phrase ”subject to the jurisdiction thereof” implied a mutual compact between the individual and the government, requiring intentional acceptance by the latter. They reasoned that, given the absence of large-scale unauthorized immigration at the time of the Fourteenth Amendment’s drafting, the clause was not intended to apply to those entering the country “without consent.” They further suggested that Congress had the constitutional authority to limit birthright citizenship to the children of citizens and lawful permanent residents, a proposition they