What Is Citizenship by Birth?
Following the Civil War, three amendments were made to the US Constitution: the 13th Amendment outlawed most forced labor; The 14th granted citizenship to all who were born in the country, including former slaves; and 15 outlawed racial discrimination in voting rights. Now President Trump has announced that he believes he can repeal a key provision of the 14th Amendment by his decree.
“Citizenship by birth” refers to the idea that you can become a citizen of a country simply by being born in it. A fancy legal term is jus soli , “the right of the land.” This was necessary after the Civil War, because otherwise the millions of enslaved African Americans in the country were not considered citizens. (The Supreme Court ruled in the Dred Scott case that people of African descent can never become US citizens.)
The United States is one of 30 countries with citizenship by birth.
Most countries in the Americas are provided this way , including Canada, Mexico, and the United States. People can also become US citizens by being born to US citizen parents (even overseas) or by going through the naturalization process .
Most countries outside America only grant citizenship to babies if their parents were citizens, but some have a modified version of jus soli . For example, if you were born in France and one of your parents was also born in France, you acquire French citizenship even if neither of them was a citizen. If you spend the first ten years of your life in Australia, you can become an Australian citizen whether your parents were citizens or not.
What Does the 14th Amendment Really Say?
Here’s the exact wording :
All persons born or naturalized in the United States and subject to their jurisdiction are citizens of the United States and the state in which they reside. No state can enact or enforce any laws that limit the privileges or immunities of citizens of the United States; no state can deprive any person of his life, liberty or property without due process of law; and not deny any person under its jurisdiction the equal protection of the law.
Can an executive order revoke citizenship by birth?
Probably not, if you are to believe – let me check my notes – oh yes, almost everything. Politico reports that “almost everyone on the left and right says no.” Lawyers told The New York Times that the idea “is at odds with the legal consensus.” Fox News is more optimistic that “Trump will face legal action if he obeys the decree and it remains unclear if he can win.” Paul Ryan said on the radio that the president “obviously cannot do this.”
There is an argument – well, an article – that claims there may be a loophole in the phrase “subject to its jurisdiction”. What if, as stated, “jurisdiction” means having citizenship or permanent resident status? Then you could refuse citizenship by birthright to children without parental documents. There has never been a court case resolving this exact issue, although NPR reports that “jurisdiction” in this sense is usually interpreted to mean everyone who obeys US law — in other words, everyone in the country except diplomats.
The president has signed unenforceable orders before, so it could still lead to litigation, even if the battle is doomed by most. But there are no guarantees that such an order will ever be implemented.
Dara Lind writes on Vox that termination of citizenship by birth “has always been a restrictive immigration proposal that is most difficult to separate from simple xenophobia.” The executive order threat may be more of an attempt to get people to talk about immigration (which Trump supporters firmly adhere to) as the midterm elections approach.
Correction 11/1/2018: The 13th amendment still allows forced labor of prisoners. Thanks DL Dock .