Guide

Explainer: Trump’s Executive Order on Birthright Citizenship

by Dan Vicuna

Trump Executive Order: Protecting the Meaning and Value of American Citizenship 

President Trump’s executive order concerning birthright citizenship is an unlawful, ahistorical, and illogical attack on the U.S. Constitution. 

What Does the Fourteenth Amendment Say About Citizenship?

The plain language of the 14th Amendment makes clear that “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.”

During the debate over ratification of the amendment, proponents and opponents of birthright citizenship knew that the right to American citizenship at birth for children born in the United States to non-citizen parents was at stake in the amendment’s final language. Members of Congress understood that the “and subject to the jurisdiction thereof” clause only eliminated from birthright citizenship two categories of people who are not subject to the jurisdiction of the United States: the children of diplomats, who enjoy diplomatic immunity, and lawful enemy combatants, who enjoy enemy combatant immunity. Congressional debate featured arguments about whether the children of Chinese and “gypsy” immigrants who were neither diplomats nor lawful enemy combatants should be granted birthright citizenship because it was well understood that the final language of the amendment would grant that right. 

United States v. Wong Kim Ark: Upholding Birthright Citizenship

The Supreme Court of the United States affirmed the clear and unambiguous meaning of the 14th Amendment in 1898 and has not reversed itself in the intervening 127 years. In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the American-born child of Chinese immigrant parents was denied re-entry into the United States by the collector of customs in the Port of San Francisco following a trip to China on the basis of the Chinese Exclusion Act and the mistaken belief that he was not an American citizen. Wong Kim Ark appealed this decision, arguing that his birth in San Francisco in 1873 granted him American citizenship under the 14th Amendment. The Supreme Court agreed with Wong’s argument, holding that the amendment granted citizenship to any person born in the United States who was not the child of a foreign diplomat at the time of their birth.  

“Defining ‘American’” by James C. Ho provided much of the history of the 14th Amendment debate in this article. 

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