President-elect Donald Trump’s repeated challenges to birthright citizenship under the 14th Amendment have reignited a longstanding debate in American politics. Recently, he has stated his intentions to issue an executive order to end this policy, citing what he perceives as a “historical myth” and “willful misinterpretation of the law.”
Trump’s proposed executive order aims to alter the interpretation of the 14th Amendment by denying automatic citizenship to the future children of undocumented immigrants. This move is part of his broader immigration policy, which includes stepping up the removal of undocumented immigrants without court hearings and potentially denying passports to children born to such individuals. Trump’s position starkly contrasts with the 14th Amendment’s assertion that all persons born or naturalized in the US are citizens.
The birthright citizenship concept was initially incorporated to ensure that descendants of enslaved people could claim US citizenship. Chief Justice Roger B. Taney’s infamous Dred Scott decision in 1857, which denied citizenship to enslaved individuals and their descendants, was nullified by the 13th and 14th Amendments. The 14th Amendment, passed by Congress in 1866, was crucial in affirming citizenship by birth within the US territory, ensuring that anyone born in the country is subject to its laws and entitled to its protections.
Central to Trump’s argument is the interpretation of the phrase “subject to the jurisdiction thereof.” Some, like John Eastman, argue it excludes children of undocumented immigrants from citizenship. Eastman, who has faced legal challenges including disbarment and election interference charges, has been a vocal advocate of this interpretation. However, most legal scholars, including conservatives, view this as a fringe theory, highlighting that even historically conservative judges have upheld birthright citizenship.
The US Supreme Court’s landmark ruling in Wong Kim Ark’s case in 1898 affirmed that children of non-citizens born in the US are citizens, supporting the 14th Amendment’s broad application. The court’s decision emphasized citizenship by birth, dismissing restrictions based on parents’ nationality, except in specific cases involving foreign diplomats or hostile occupations. Judge James Ho, a Trump appointee, further supports this view, though he introduces a caveat for “invasion” scenarios, which is not widely acknowledged legally.
Changing the Constitution to support Trump’s stance on birthright citizenship would be a formidable task. Constitutional amendments require overwhelming political consensus, a rarity in the current polarized political climate. The last successful constitutional amendment was over three decades ago, underscoring the difficulty and rarity of altering foundational elements of US law.
The debate over birthright citizenship highlights broader tensions about immigration and constitutional interpretation in the US. Trump’s advocacy for drastic changes to well-established legal interpretations showcases the ongoing conflict between historical precedent and contemporary political agendas. As this issue continues to evolve, it remains a critical point of discussion within the American legal and political landscapes.
Source: CNN
