The period leading to the ratification of the 14th Amendment was marked by the Civil War and the Abolitionist Movement. This amendment, introduced in 1866 and ratified in 1868, was aimed primarily at securing the rights of newly freed slaves.
The Abolitionist Movement helped spark the Civil War, which subsequently became the catalyst for substantial constitutional change. President Abraham Lincoln's Emancipation Proclamation in 1863 declared all slaves in Confederate-held territory to be forever free, setting the stage for wider national reforms concerning civil rights.
As the Civil War drew to a close, the Union grappled with how best to integrate millions of newly freed slaves into the American social, economic, and political frameworks. The Radical Republicans in Congress during Reconstruction played a pivotal role in framing and passing the 14th Amendment. They sought to counteract the Black Codes, which were laws passed throughout the South that severely restricted African Americans' new freedoms.
Significantly, the Citizenship Clause of the 14th Amendment overrode the Dred Scott v. Sandford decision of 1857, which held that African Americans could not be American citizens, whether enslaved or free. Under the new amendment, citizenship was granted to "all persons born or naturalized in the United States," a direct response to former slaves' uncertain status. 1
Once adopted, the 14th Amendment became a foundational text for future civil rights advancements in the US. Its Equal Protection Clause has been fundamental in various landmark Supreme Court decisions including Brown v. Board of Education in 1954, which ended racial segregation in public schools.
Today, the 14th Amendment continues to affect debates on immigration and rights of those born in the US. Its Birthright Citizenship provision remains a pivotal element, ensuring that anyone born on US soil is an American citizen.
The legal interpretations of the phrase "subject to the jurisdiction thereof" in the 14th Amendment have sparked considerable examination and debate in American jurisprudence. The questions primarily surround who truly qualifies as being under U.S. jurisdiction, an issue that directly impacts the determination of citizenship under the Citizenship Clause.
One of the landmark Supreme Court cases that deeply dissected this clause was United States v. Wong Kim Ark, decided in 1898. Wong Kim Ark was born in San Francisco to Chinese parents, who, at the time of his birth, were subjects of the Emperor of China, but had established a permanent domicile and residence in the United States. The case arose when Wong was denied re-entry into the United States after a trip abroad, under laws that restricted Chinese immigration at the time.
The Supreme Court's decision affirmed Wong's citizenship by birth, interpreting the jurisdictional clause as implying that anyone born on American soil, excluding children of foreign diplomats or enemy soldiers, is subject to U.S jurisdiction and thus an American citizen.
This interpretation affirmed the principle of jus soli—right of the soil—as a fundamental aspect of American nationality law, contrasting with jus sanguinis—right of blood—which many other countries follow to determine citizenship based on one's parents' nationality. The Court's ruling held that the jurisdiction the U.S. wields over an individual born in its territories is sufficiently absolute and qualifies that individual for citizenship, dismissing counterclaims that allegiance to a parent's nationality negates the jurisdictional clause.
This ruling has since become a cornerstone in American citizenship jurisprudence, establishing a clear interpretation of the 14th Amendment that underscores its dedication to civil rights and equality. It articulates a broad and inclusive understanding of the jurisdictional requirement, validating birthright citizenship against interpretations that would exclude large groups based on parentage. 2
In recent years, birthright citizenship has emerged as a contentious issue in American politics, with various policymakers challenging its current interpretation. Former President Donald Trump has been notably vocal, advocating for stricter measures that could alter the principle that grants U.S. citizenship to all children born on American soil, regardless of their parents' legal status. This stance was aired prominently throughout his administration and continues to be a significant part of his political platform.
Trump's proposals primarily surfaced during both his presidency and subsequent bids for reelection, arguing that this automatic citizenship provision entices individuals to enter the U.S. unlawfully. Despite these proclamations, Trump did not successfully materialize these ideas into policy, encountering substantial legal and legislative pushbacks.
The efforts to reinterpret or amend aspects of the 14th Amendment also extended to various state-led initiatives. States such as Texas and Arizona have witnessed legislative introductions aiming to challenge the status quo of birthright citizenship. These bills propose that citizenship should not automatically apply to children of individuals who are in the country illegally. Each proposal has faced significant scrutiny and opposition arguing that such measures stifle the inclusive vision embedded within the 14th Amendment.
Constitutional scholars and many lawmakers still uphold the Wong Kim Ark precedent, advocating that it unequivocally supports the ethos of universal birthright citizenship established under the 14th Amendment. They regard any attempts to contravene this through executive orders or state legislation as constitutionally dubious.
The clash between historical jurisprudence and contemporary political agendas makes birthright citizenship a polarizing yet crucial aspect of America's ongoing dialogue about its identity and constitutional fidelity. It captures a dynamic where constitutional interpretations are not merely academic exercises but are deeply consequential in shaping real-world policies and influencing human lives.
Birthright citizenship continues to shape immigration patterns, influencing both legal migration and debates over undocumented immigration. The aspect of 'birth tourism' brings into focus how some perceive the law as a loophole that attracts non-citizens specifically to benefit from the citizenship conferred to their children at birth.
Critiques of birthright citizenship often cite this practice as a primary driver for illegal immigration, suggesting that the guarantee of a child's citizenship incentivizes parents to disregard legal entry processes. This has sparked dialogue on whether changes to the Fourteenth Amendment or its interpretation would deter unlawful entry into the United States.
However, the data on immigration and the demographic impact of birthright citizenship present layers of complexity. Instances of birth tourism are difficult to quantify with precision, and the surge in undocumented crossings often correlates more with geopolitical and economic crises in neighboring regions than with the allure of citizenship perks.
Concerns about birthright citizenship also intersect with broader societal apprehensions concerning welfare and public service utilization. The argument posits that children born in the United States to non-citizen parents might strain public resources or alter the demographic composition in ways that could influence political processes. However, long-term studies indicate birthright children tend to contribute positively to the economy as they reach working age, enriching the workforce and participating in civic life. 3
Despite divergent views, America's profile as a diverse and inclusive society owes a great part to its principle of birthright citizenship. It is this inclusivity that has historically engineered cultural exchanges, the proliferation of a diverse workforce, and a sense of belonging among those born on U.S. soil, irrespective of parental nationality. Amendments or restrictions to this policy pose considerations about their constitutional validity and their implications concerning statelessness and social alienation of countless children.
