Supreme Court set clear precedent on birthright citizenship

“Jus soli,” meaning “right of the soil,” is back in question as President Trump seeks to do away with birthright citizenship, a core tenet of American immigration policy, by executive order. To be sure, the president is not alone in calling for abolition of citizenship obtained by birth; arguments have ebbed and flowed throughout U.S. history, in tune with anti-immigrant sentiment. Calls to abolish birthright citizenship intensified, for example, in the 1990s and in the aftermath of 9/11.

But never has such rhetoric flowed from the White House, amidst a general climate of anger and distrust. And the timing of the president’s announcement — a week before the 2018 elections — threatens to inflame tensions.

{mosads}What’s worse, any such executive order likely would be declared unconstitutional, making the president’s promise futile. Here’s why: Birthright citizenship has a long history in the United States, upheld by Supreme Court rulings.

Unlike “jus sanguinis,” or citizenship that stems from a blood parent who is a national, citizenship by birth is a creation of law and conferred upon anyone born within the jurisdiction. Throughout its history, the United States has conferred citizenship through both means.

Unsurprisingly, birthright citizenship came to America with English common law. Justice Horace Gray emphasized the need to interpret the legal meaning of “citizen” for constitutional purposes in the 1898 case of United States v. Wong Kim Ark. That case concerned a San Francisco man born to Chinese nationals whose citizenship status was called into question when he returned from a trip to China. Ark had never renounced ties to the United States or acquired conflicting allegiance to China, and the Supreme Court’s 6-2 ruling in his favor established precedent in interpreting the 14th Amendment’s citizenship clause.

The court observed that under English law, citizenship was by “birth within the allegiance, also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’ of the king.” Under the principle, “all persons born within the king’s allegiance and subject to his protection” were citizens. Allegiance and protection obligations were “not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom.” Therefore, all “children, born in England, of such aliens were therefore natural-born subjects.” According to Justice Gray,  the “same rule was in force in all the English colonies” in America.

He referenced an 1832 case, Levy v. McCartee, in which Justice Joseph Story wrote, “If an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,” and any such child was “a native-born subject, according to the principles of the common law.”

{mossecondads}Aside from the common law, the Civil Rights Act of 1866 addressed the matter, stating that “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Most importantly, the 14th Amendment to the Constitution recites: “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.”

Some, including the president, argue that the qualification “subject to the jurisdiction thereof” may help to deprive children of illegal immigrants of birthright citizenship. But this is wishful thinking. The wording, Justice Gray explained in Ark, “would appear to have been to exclude, by the fewest and fittest words … children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign state.” Both, he noted, under the law in England and in American colonies, “had been recognized exceptions to the fundamental rule of citizenship by birth within the country.”

To support this argument, Justice Gray referred to an even earlier ruling: Chief Justice John Marshall’s words in The Exchange v. McFaddon (1812). Marshall wrote unequivocally that aliens are subjected to the jurisdiction of the sovereign where they are found, reasoning that “it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if (aliens) did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.”

So, if illegal Mexicans or other nationals are found in the United States, they are subject to the jurisdiction of the United States. As Marshall noted, Mexico or other sovereigns do not have “any motive for wishing such exemption.”

The court’s ruling in the Ark case does not seem to exclude the children of illegal immigrants from their birthright of citizenship. Justice Gray was clear that the Civil Rights Act and the 14th Amendment mandate this conclusion.

President Trump cannot undo these principles by executive order. Even assuming that birthright citizenship exacerbates illegal immigration, there is no need to limit citizenship to the children of nationals or permanent residents. Citizenship could be restricted to children born to parents present in the country legally — for example, those in the United States on work permits or other visas. That would prevent the demonization of all immigrants and protect those who play by the rules.

The battle is against illegal immigration, not all immigrants.

Sandeep Gopalan is a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He previously was co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA’s immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.