Sometimes an Amendment Is Just an Amendment - Boston Review
The Fourteenth Amendment’s equal protection and due process clauses are never far from the news. The ongoing federal marriage-equality litigation lies at their intersection. Many transformational events of post-Reconstruction America, from the dismantling of Jim Crow and the protection of reproductive autonomy to the Supreme Court’s decision in the 2000 presidential election, would have been impossible without them.
But recently two less familiar elements of the amendment—its citizenship clause and its public-debt clause—have taken center stage. Efforts to twist these clauses in the service of policy preferences should remind us that there is a real line between constitutional interpretation and argument in defense of political goals.
One of those efforts concerns birthright citizenship. The first sentence of the first section of the Fourteenth Amendment provides 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.” This phrase overturned the Supreme Court’s notorious Dred Scott decision (1857), which held that persons of African descent could never become citizens. When the amendment was ratifed in 1868, it conferred citizenship on the newly freed slaves and marked an important turning point in the United States’s definition of “We the People.”
The language of the citizenship clause is expansive: all persons—not just members of a particular race or children of citizens—who are born in the United States are entitled to U.S. citizenship. The qualifying phrase “and subject to the jurisdiction thereof” was included to clarify that children born to foreign diplomats or (perish the thought) foreign invaders occupying U.S. soil would not acquire citizenship.
The authors of the amendment understood the implications of the clause: it would confer citizenship on children of people who were not citizens themselves. For the most part, that posed no problem because the United States then had an open-door policy, at least with respect to most potential immigrants. But the clause applied even to more politically controversial populations. Senator Lyman Trumbull, one of the architects of Reconstruction, responded to criticism that the clause would result in “naturalizing the children of the Chinese and Gypsies born in this country” by affirming that it “undoubtedly” would. And even after Congress passed the first significant restriction on immigration—the Chinese Exclusion Act—the Supreme Court held in United States v. Wong Kim Ark (1898) that a child born within the United States to parents who were ineligible to become citizens nonetheless possessed birthright citizenship.
Anti-immigrant activists argue that the citizenship clause does not mean what it says. They are wrong.
In recent years, anti-immigration activists have warned of a flood of “anchor babies”—children whose noncitizen mothers travel illegally to the United States to give birth for the purpose not only of obtaining U.S. citizenship for their children but of gaining a pathway to legal residence for themselves as well. Proposals by members of Congress and conservative activists to repeal the citizenship clause in response will surely fail: there is no possibility that they can garner the required two-thirds votes from both houses of Congress. So anti-immigrant activists have turned instead to arguing that the citizenship clause does not mean what it says. They don’t deny that their targets were born here. Nor do they deny that those children are subject to the jurisdiction of the United States in the sense that they must obey federal and state law, can be the subject of child-custody or parental-termination decisions by federal or state courts, and so on. But they say that because such children may also owe obedience to their parents’ country of citizenship—if that country gives birthright citizenship to children born abroad (which the United States itself does not invariably do, as last term’s Flores-Villar case illustrates)—they somehow are not sufficiently subject to U.S. jurisdiction to qualify for citizenship because they are not subject exclusively to U.S. jurisdiction.