January 28, 2025
Among the many Executive Orders President Donald Trump has signed is one aimed at ending "birthright citizenship." That is the aspect of the U.S. Constitution that has enabled children born to illegal aliens or those on temporary visas while they are in the U.S. to become citizens, although their parents are not citizens.
Birthright citizenship is also known as the legal principle of unrestricted — or “pure” — jus soli, or the "right of the soil."
Trump’s effort to end this element has stirred quite a lot of opposition. At least 22 states, the city of San Francisco and the District of Columbia have filed suit in opposition.
During the signing of the Executive Order, Trump said, incorrectly, that the United States is “the only country in the world that does this.” However, some 30 countries allow automatic jus soli, and most do not have any restrictions to it. However, while Trump’s assertion wasn’t correct, it is true that this concept is losing its appeal in these countries.
The part of the U.S. Constitution that enables this is the Fourteenth Amendment, which states: “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.”
Trump's order seeks to change the rules to deny the granting of citizenship to these children in the future. It does not apply retroactively.
However, although the Amendment’s language does not specifically say it, there was a specific and limited intent for creating the Amendment that has been disregarded for a long time.
Britannica online explains that the Fourteenth Amendment, approved in 1868, “granted citizenship and equal civil and legal rights to African Americans and slaves who had been emancipated after the American Civil War, including them under the umbrella phrase “all persons born or naturalized in the United States.”
To the need for the Amendment, National Immigration Forum adds: “In the aftermath [of the Civil War], Congress was eager to ensure that newly emancipated blacks not be deprived of their rights in states previously part of the Confederacy as well as to guarantee that African Americans were entitled to citizenship regardless of where they resided, overturning the Supreme Court’s Dred Scott decision.”
However, for the last hundred or so years, the original intent of the Amendment has been unheeded, and it has been allowed to apply to virtually anyone born in the U.S., regardless of the circumstances of why the parent or parents were in the country.
Consequently, today, and for many years, pregnant women have come to the U.S. and given birth to their babies, and the babies have been granted citizenship.
Whereas the original intent of the Amendment made perfect sense and was the right thing to do, the more liberal interpretation of it has allowed any child born here regardless of who the parent is. The parents could be good people or bad people, but that doesn’t matter. And because their child is a citizen, special circumstances exist for them.
Giving a baby citizenship in the U.S. simply because its mother happened to be here when it was born makes no sense, and is not something that we should allow any longer. And as the Amendment is now understood, and has been for some time, it is an advertisement for illegal entry into the country.
From Wikipedia: “The Pew Hispanic Center estimated that in 2016, approximately 6 percent of all births in the U.S. (about 250,000 out of 4 million births per year) were to unauthorized immigrants, and a population of 5 million children under 18 with at least one unauthorized parent were living in the United States. In 2018, the Migration Policy Institute estimated numbers at 4.1 million children.”
Straightening this out could be a difficult task, some say. It would require an amendment to the Constitution, and that is very difficult and takes a long time. It requires a two-thirds vote in both chambers of Congress to approve an amendment to initiate the change, and it must then be ratified by three-fourths of the states, or 38 of the 50.
But the simple solution is to consider why the Amendment was created in the first place, and allow that original intent to once again be the correct interpretation.
And in doing so, seriously consider the importance of the clause “and subject to the jurisdiction thereof.” This is interpreted to mean that the non-citizen must owe full allegiance to the United States and to no other country. Given that the non-citizen parent(s) entered the U.S. illegally, it would seem their allegiance would be to the country from which the non-citizen parent(s) came, rather than to the U.S., where they have broken the law when they entered.
The original idea was not to allow every, or any, child born in the country to be ruled a citizen, but to award citizenship to African Americans, slaves and their children. Otherwise, to become a citizen here, everyone desiring citizenship must follow the existing process.
To reiterate, Trump’s end to birthright citizenship, should it be approved, will not be applied to those who have already come in, but to those in the future.