On June 30, just four days shy of the 250th anniversary of America’s nationhood,the Supreme Court of the United States issued a highly anticipated decision, in the case Trump v. Barbara, that goes to the heart of national identity: citizenship. Written by Chief Justice John Roberts, it isa landmark, watershed, earth-shattering decision, in which the Court ruled that the citizenship law… stays exactly what it has been for 158 years!Confused? Yes, so is every other sane person. In these hyper politicized times we live in, the long-established status quo is treated by some people as controversial.
THE TWO TYPES OF CITIZENSHIP Basically, there are two typs of citizenship: “natural-born” and “naturalized”. Immigrants can become naturalized citizens through various mechanisms provided by federal statute. A “natural-born” citizen is anyone born on U.S. soil. Your parents might be descendants of settlers who arrived in America in 1620. Or your mother might have illegally crossed the border in the dead of night and given birth to you in a shed.No difference. It’sabout YOUR status, not your parent’s (with narrow exceptions, mentioned below).
This birthright is enshrined in the U.S. Constitution’s 14th Amendment, adopted in 1868. Thetradition of birthright citizenship was inherited from the English common law of “jus soli” or “right of soil” which meant that any child born in a realm is the natural subject of the realm’s sovereign, who owes the child a “duty of protection” and in return, the child has a “natural allegiance” to him. After the United States declared its independence from Britain in1776,and before it adopted the constitution in 1789, there wasn’t really such a thing as U.S. citizenship.
People were citizens of their state. The United States was a confederacy of sovereign states, a sort of supranational body where each state promised equal legal treatment to each other’s citizens.Each statestill based citizenship on the tradition of jus soli, except, instead of “subjects” of the king, they were now “citizens” of the state. When the constitution was adopted in 1789 (in order to “form a more perfect union”) it gave the nation as a whole more legal and functional cohesion. But it created a federal government of very limited powers, concerned with things like defense, foreign relations, interstate commerce, coining a common currency, etc.
The states retained most of the governing power over ordinary matters (including citizenship).State governments were considered closer to the people’s direct control and therefore vested with more direct powers.No national “citizenship” standards were provided. As Chief Justice John Roberts noted, citing many scholars and jurists from that era, children born to citizens and foreigners alike (including those who were merely on a “temporary sojourn”) were always considered natural-born citizens of the state where they were born. Eventually, the 14th Amendment would incorporate it into the constitution, after a bitter Civil War.
Documenting the idea of ‘jus soli’ But why was it important to make the “jus soli” idea explicit in the constitution, if it was already widely accepted? The short answer:slavery.This vile institution had always been a serious blight in the nation’s founding, given its claims of being conceived in liberty, and many of the founders tried to abolish it (in fact, the project of creating and maintaining the nation almost fell apart over this issue, a number of times). But things became really heated in the aftermath of an infamous 1857 Supreme Court decision, Dred Scott v. Sanford, which declared that black people could never be citizens and that they were inferior and “had no rights which the white man was bound to respect.”
Even at that time, while slavery was still legal in several states, this decision was met with reactions of horror. The fact of slavery’s existence was disturbing enough for many people around the country (remember: the free North had more than twice the population of the slave south). But a decision that actually spells out a “legal” principle of racial inferiority and says one race had “no rights” and could NEVER gain citizenship? It shocked the conscience of many ordinary people who, not owning slaves themselves, perhaps had been willfully blind until then, going about their lives considering slavery one of those far-away evils that one didn’t often think about and something that would surely be solved by clever people at some point in the future.
Many writings from that era show the resolve of abolitionists and decent people everywhere gearing up to undo the damage of Dred Scott.Years of public unrest ensued, followed by the Civil War (1861-1865) that killed 2% of the nation’s population, and led to the assassination of President Abraham Lincoln. But finally, slavery was abolished by the 13th Amendment in 1865. Then came the 14th Amendment in 1868, with a whole slate of defined rights constitutionally enforceable against the states, and not just the federal government this time. Plus, the specter of Dred Scott was finally exorcised by spelling out jus soli citizenship. The newly adopted 14th Amendment reads: “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.”
That phrase “subject to the jurisdiction” was a narrow carve-out meant to exclude those who are legally exempt from full jurisdiction of the United States, namely, children of diplomats and Native American tribes, who were considered partly sovereign and were not taxed. All of this was addressed in a famous 1898 case, United States v. Wong Kim Ark, involving a young man born to Chinese parents who lived and ran a business in San Franscisco for some time, before returning to China. The American born son remained in the U.S. Some years later, on his way back from a visit to China, he was denied entry and his citizenship questioned. The Supreme Court ruled, in clear terms, that the 14th Amendment made him a citizenby birthright and thathis parents’ return to China had no bearing on his status.
THE MEANING OF ‘SUBJECT TO JURISDICTION AND INTERPRETATIONS Yet, in the 21st Century,that phrase, “subject to the jurisdiction thereof ” has been seized upon by neo-nationalist activistsand given a novel, anachronistic definition in order to limit the scope of birthright citizenship.They say “subject to the jurisdiction” means the child’s parents must be lawful residents. Which defies not only the 1898 Supreme Court ruling, but also the text’s plain meaning, since everyone in the country, even an illegal alien, is subject to its jurisdiction, unless specifically exempted, such as diplomats and Native American tribes. Theactivistshave taken a broad right with a narrow exception and turned it into a restrictive privilege defined by a contrived reading of the exception.
Some commentators have even conflated this with other, unrelated parts of the citizenship laws. For example, there is a provision for children of Americans born abroad that delineatesrequirements for parental citizenship. The activistssay this “proves” that our legal framework assumes a parental connection to birthright citizenship. But this misses the point entirely. The very reason the citizenship must be defined by parental status in these cases is that the birth is NOT in the United States! That is why the child does not have automatic birthright citizenship. President Donald Trump has bought into this theory that the 14th Amendment requires MORE than just birth on U.S. soil.
At issue in the Trump v. Barbara case is an executive order he issued,making up new exceptions to citizenship for children born to “foreign citizens unlawfully or temporarily in the country.” The Supreme Court declared the order invalid. The constitution simply does not authorize the president to make such policies. There are lawful means of amending the constitution and statutes. These involve the legislature and/or the states. The “temporarily in the country” exclusion doesn’t even make superficial sense in the context of the 14th Amendment’s “jurisdiction” language, because presumably, lawful temporary residents are “subject to the jurisdiction” of the United States (even if arguably illegal aliens are not)?
Also, the Wong Kim Ark case already dealt with exactly this question of children born to temporary residents, back in 1898. One major argument that has been raised is that the Citizenship Clause was meant to apply only to the then-newly freed slaves. But surely that could be said in clear language? The 15th Amendment, adopted only two years after the 14th, specifies that voting rights shall not be abridged “on account of race” and even specified that it shall not be denied to “male” citizens, just to clarify that it is not banning voting-rights-discrimination against women. If citizenship was meant to be so narrow, why wouldn’t the framers just say that? Yes, it was enacted in response to the racial discrimination of the Dred Scott case, but there is no indication that the framers of the clause meant to cure ONLY that one specific form of discrimination rather than all such discrimination.
Many Trump supporters are incensed by the Court’s ruling. Some are calling to impeach Justice Amy Coney Barrett, the sole Trump appointee to fully join the decision of the Court. Of the other two Trump appointees, Neil Gorsuch dissented and Brett Kavanaugh joined in the outcome of the decision but not the reasoning. Anti-immigrant media personalities are having meltdowns and bemoaning “the end of our country” as if this is some big sea change. In reality, absolutely nothing has changed as a result of this decision.
THE TAKEAWAY What HAS happened is that a strident new movement—extreme activism masquerading as tradition—tried and failed to take the country in a manufactured, faux-traditional direction. Hence, they condemn the Court’s self-restrained, completely standard reading of the constitution as if it’s a result of “activist” and “rogue” judges. This July 4th, there is a lot that feels not quite right in the country’s mood going into the big 250th Independence Day, which should be much more joyful than what I’m noticing. The economy is uncertain. The politics are fraught. The culture is touchy.
But, despite the unhinged reactions from some quarters, this Supreme Court decision is a bright spot. It says that our constitution and fundamental principles are important. Judicial integrity and political restraint are important. Most of all, it’s absolutely, fundamentally, existentially important to reject a naked power-grab by a monarchical executive who thinks he’s above the law,that the Court should rubberstamp all his decisions, and that he’s entitled to our allegiance and obedience—instead of the other way around. We said “no” to that 250 years ago. Our answer has not changed.
The author is an attorney and writer based in Manhattan, New York.