Birthright citizenship is in Peril

The U.S. Supreme Court will short­ly be hear­ing a case regard­ing birthright cit­i­zen­ship. This is a result of an exec­u­tive order issued by President Trump in January of 2025 remov­ing the recog­ni­tion of cit­i­zen­ship for the U.S.-born chil­dren of both immi­grants liv­ing here ille­gal­ly and vis­i­tors here only tem­porar­i­ly. The rul­ing of the Court will like­ly be issued pri­or to its clos­ing of the present term in late June.

The entire case cen­ters around the word­ing of the first sen­tence of Section 1 of the 14^th Amendment, rat­i­fied in 1868. That sen­tence states: 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 amend­ment was specif­i­cal­ly craft­ed to ensure that freed slaves would be grant­ed full cit­i­zen­ship fol­low­ing the con­clu­sion of the Civil War and was a neces­si­ty fol­low­ing the noto­ri­ous Supreme Court rul­ing in the 1857 Dred Scott case that blacks — enslaved or free — could nev­er be American citizens.

In the inter­ven­ing years, there have been three gen­er­al­ly rec­og­nized excep­tions to the amend­ment, includ­ing the child of a for­eign diplo­mat (whose inter­ests obvi­ous­ly rep­re­sent a for­eign coun­try), chil­dren of invad­ing for­eign armies, and chil­dren of Native Americans who were long under­stood to be under the juris­dic­tion of the trib­al gov­ern­ment as a sep­a­rate sov­er­eign. This last excep­tion ceased to exist in 1924 when cit­i­zen­ship of Native Americans was for­mal­ized and recognized.

Today, oppo­nents of birthright cit­i­zen­ship are expect­ed to point to “con­text,” argu­ing that the Amendment was writ­ten only to cov­er for­mer­ly enslaved peo­ple. Well, read the amend­ment sen­tence again. Nowhere does it state that the amend­ment thus applies.

Opponents may also argue that most devel­oped democ­ra­cies don’t grant auto­mat­ic cit­i­zen­ship. Only 30 coun­tries world­wide cur­rent­ly grant unre­strict­ed birthright cit­i­zen­ship. Several democ­ra­cies have dis­pensed with the prac­tice: the United Kingdom in 1983, France in 1993, and Ireland in 2005.  Australia and New Zealand also restrict­ed the practice.

In 1898 the Supreme Court ruled, in United States v. Wong Kim Ark, 169 U.S. 649, that birthright cit­i­zen­ship was grant­ed regard­less of the par­ents’ immi­gra­tion sta­tus. That rul­ing has gov­erned U.S. pol­i­cy regard­ing cit­i­zen­ship for 127 years, a peri­od dur­ing which, if it had posed a seri­ous prob­lem, a fur­ther amend­ment could eas­i­ly have been intro­duced and pre­sent­ed to the American people.

This case is cer­tain­ly going to pro­duce some inter­est­ing con­ver­sa­tions among the Supreme Court mem­bers who claim to be rigid orig­i­nal­ists, such as Clarence Thomas and Samuel Alito. It is no stretch to pre­dict that these two jus­tices will for­sake their orig­i­nal­ist ten­den­cies in order to uphold President Trump.  It will be inter­est­ing to see how any of the jus­tices will attempt to stretch, sub­vert, obfus­cate and dis­tort the word­ing and mean­ing of the words in that first sen­tence of the 14^th Amendment to con­form to their own pro­cliv­i­ties regard­ing the question.

This case is so intrin­si­cal­ly impor­tant, espe­cial­ly should the court uphold the Trump posi­tion, because of the effect it could have on the many thou­sands of chil­dren born in this coun­try to par­ents not here legal­ly since the issuance of the exec­u­tive order in January 2025.

When a case of this poten­tial impor­tance aris­es it becomes one that deserves dire con­sid­er­a­tion in the Congress and, con­se­quent­ly, through the propo­si­tion of anoth­er con­sti­tu­tion­al amend­ment, not left to the dis­cre­tion of nine indi­vid­u­als sit­ting on the U.S. Supreme Court, and cer­tain­ly not in oppo­si­tion to a rul­ing — affirm­ing the lan­guage of the 14^th Amendment — that has stood for 127 years!