Rogers Smith on birthright citizenship

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The American concept of birthright citizenship rests on the Citizenship Clause of the 14th Amendment from 1868:

“All persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

Penn Today discussed the intricacies surrounding birthright citizenship with Rogers Smith, a constitutional law scholar and president of the American Political Science Association.

Smith, also the Christopher H. Browne Distinguished Professor of Political Science in the School of Arts and Sciences, centers his research on constitutional law and American political thought. He also focuses on modern legal and political theory, with special interests in questions of citizenship, race, ethnicity, and gender. 

black marker hovering over constitution

 

What’s the history behind birthright citizenship?

The institution of birthright citizenship in America stems from an English legal doctrine that a person owed their subjectship and perpetual allegiance to the king who provided protection in the person’s birth region. That concept didn’t fit completely with the American Revolution, which denied that there was any perpetual allegiance to royalty. While there are many advantages to having a birthright citizenship rule, its role in U.S. law was disputed until the 14th Amendment in 1868. Its Citizenship Clause overturns the Supreme Court’s rule in the Dred Scott v. Sanford case, which held that Americans of African descent could not be U.S. citizens. After that ruling, the descendants of slaves were considered citizens.

Is it true that birthright citizenship is given to anyone born in the United States?

For most people, yes, it’s perfectly clear. The great bulk of Americans are citizens who acquired their citizenship through birth in the United States. But, not every person born on U.S. soil or in a U.S. territory is considered a citizen under the 14th Amendment to the U.S. Constitution. For example, members of Native tribes are not considered 14th Amendment “birthright” citizens. They became citizens through the Indian Citizenship Act of 1924, which established citizenship for Natives that were previously excluded. As another example, children of diplomats who were born in this country are not considered citizens under birthright citizenship. 

Persons born in U.S. territories to non-citizen parents are also U.S. citizens by statute only, not by virtue of the 14th Amendment, according to the courts, if they are citizens at all. (American Samoans are “nationals,” not “citizens.”)  The 14th Amendment also does not explicitly guarantee citizenship to children of undocumented immigrants, and whether it does so is the topic of a lot of the debate today.

Can a U.S. president just change birthright citizenship with an executive order?

No. He can’t change citizenship rules. Period. There is no legal theory under which the executive can alter anyone’s citizenship unilaterally by executive order.

He cannot change the Constitution, he cannot change congressional statutes unilaterally, and he can’t change a court’s decision by executive order. It would take a constitutional amendment to make this change. 

There are differing interpretations of the 14th Amendment’s Citizenship Clause. The governing meaning could be changed by a judicial decision, but to change the actual text you would need a new constitutional amendment. 

What about U.S.-born people whose parents are not citizens? Does this negate their citizenship?

That’s an issue on which the Supreme Court has never ruled. It’s a debated issue and the Supreme Court has two precedents from the 1800s, which cut in different directions.

In the U.S. v. Wong Kim Ark, a child of a legally admitted Chinese permanent resident was ruled a “birthright” citizen, even though at that time, Chinese people were ineligible for naturalization. Nonetheless, by virtue of being born in the U.S., the child was declared a U.S. citizen.

In Elk v. Wilkins, however, it was the opposite. Elk left the Native tribe he was born into in order to join the broader American political community. He was denied access when he tried to register to vote. In that decision, the Supreme Court said even though he was born in the U.S., he was not a citizen because he owed allegiance to his tribe, which retained a portion of its own sovereignty and therefore he was not subject to the full jurisdiction of the U.S. Later, Congress enacted the Indian Citizenship Act of 1924.

When it comes to the children of undocumented immigrants, there’s no Supreme Court precedent. It seems to be similar to Ark, in the sense that children of undocumented immigrants have been regularly treated as citizens for a long time. However, some scholars say that it’s not so clear; Ark’s parents were allowed in legally, but the U.S. did not consent for the undocumented immigrants to enter. So, they may be viewed more like members of distinct tribes or territorial inhabitants rather than “birthright citizens.” I am one of the minority of scholars who thinks the Congress can act in regard to unauthorized immigrants’ children, though the president cannot.

What are the limits on presidential powers when it comes to birthright citizenship?

In terms of the Constitution’s structures of authority over citizenship, the president has no power in this whatsoever. The president has no relevant authority at all. Some people are citizens by virtue of the 14th Amendment, some are by congressional statutes, some are citizens by the naturalization process, conducted as part of the judicial system. These are the only ways that people can become citizens and those are the only authorities who can alter anything here: Congress or the courts. The executive branch has no power here. The president’s only job is to implement the laws that are already passed. 

What’s the likelihood of this actually happening?

We live in a very uncertain time. But, I’m 99 percent sure that this will not go anywhere as a legal matter. Primarily, it’s a part of the president’s efforts to stir up anti-immigrant sentiment and to mobilize his supporters prior to the midterm elections. He may try to pursue it through congressional legislation, but Congress has considered this multiple times in the last 25 years, and no bills have gotten out of committee. We’re in a different climate now. But, if the Democrats win the midterm election, nothing will happen.

What’s the takeaway about birthright citizenship?

A lot of the debates get away from the fundamental question of who do we want to be as a people?

Too much has been focused on the constitutional interpretation of the 14th Amendment and the constitutional scope of presidential powers. What we ought to be examining is the substance of our immigration policies. Having inclusive policies is a great American tradition that has served the country well. We’ve always been a nation of immigrants. I strongly favor birthright citizenship as a means of making us a more inclusive political community and building broad democratic support for helping our country succeed.

 

newborn foot with blue ink from footprint