by Mitch Kokai
Senior Political Analyst, John Locke Foundation
President Donald Trump has hinted that he plans to eliminate birthright citizenship — under which virtually all those born on U.S. soil are automatically granted U.S. citizenship, even if their parents are illegal immigrants — via executive order. This raises serious questions for conservatives.
Many of us think that in today’s world, birthright citizenship is an insane policy that undermines our sovereignty. Why reward people who come here illegally with citizenship for their kids? But conservatives also insist that the government stay within its constitutionally designated boundaries, so we have to ask whether the Constitution mandates birthright citizenship. If it does, we are stuck with it until we can pass an amendment. …
… The provision at issue here 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.” “Born or naturalized in the United States” has an obvious enough meaning. The trouble comes from “subject to the jurisdiction.”
To modern ears, the natural reading is that one is “subject to the jurisdiction” of a government if that government exercises authority over him. …
… To defend an executive order before the Supreme Court, however, the Trump administration would need to convince all five originalist judges that “subject to the jurisdiction” must be read in a way that’s somewhat quirky to modern ears, relies on a highly specific reading of the historical evidence, and overturns more than a century’s worth of standard practice. That’s a longshot.