Why Trump is right about birthright citizenship
Subscribe to enjoy similar stories. Two federal judges have issued injunctions against implementing President Trump’s executive order interpreting the 14th Amendment’s Citizenship Clause as denying birthright citizenship to children of illegal and nonresident aliens. Contrary to the overheated rhetoric of some commentators, this is an open question in our nation’s jurisprudence—one the Supreme Court may have to decide.
The high court held in U.S. v. Wong Kim Ark (1898) that the U.S.-born child of foreigners lawfully and permanently domiciled in the country was a natural-born citizen.
It didn’t rule on the status of the children of those here temporarily or unlawfully. There are serious arguments on both sides. Our study of the question has led us to believe that the text, history and structure of the Constitution demonstrate that such persons aren’t natural-born citizens.
The text of the 14th Amendment doesn’t make all persons born in the U.S. natural-born citizens of this country. Only those persons who are both born in and “subject to the jurisdiction" of the U.S.
are accorded that status. To be sure, even those here only temporarily are subject to the jurisdiction of the U.S. to a limited extent.
As Chief Justice John Marshall explained in Schooner Exchange v. McFaddon (1812), foreigners here on “business or caprice" owe a “temporary and local allegiance" to the U.S. and are therefore “amenable to the jurisdiction of the country" while they are here.
But that ephemeral jurisdiction doesn’t equate to the jurisdiction required by the Citizenship Clause. Sen. Jacob Howard (R., Mich.), who sponsored the Citizenship Clause, argued that it “ought to be construed so as to imply a full and complete jurisdiction on the part of
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