Birthright Citizenship and the Post-Constitutional Agenda

“Everything faded into mist. The past was erased, the erasure was forgotten, the lie became truth.“
– George Orwell, “1984”

Birthright citizenship in the United States is guaranteed by the first sentence of the 14^th Amendment. Known as the “citizenship clause,” the provision 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.

Measured against the text of the amendment, Donald Trump’s executive order terminating birthright citizenship for the children of undocumented immigrants is patently unconstitutional. But ultimately that may not matter. With Trump assuming near-dictatorial powers in his second term, we are entering an Orwellian post-constitutional era in which the law is whatever the president and his lackeys on the Supreme Court say that it is at any given moment. 

In true Orwellian fashion, the executive order is titled, “Protecting the Meaning and Value of American Citizenship.” It makes no mention of the U.S.-born children it could disenfranchise. According to the Washington Post, more than 150,000 children born in the country each year would no longer qualify for citizenship under the order and could end up stateless. 

The order, which takes effect on Feb. 19, begins with a proposition accepted by all constitutional scholars: that the 14^th Amendment was adopted in 1868 to override the Supreme Court’s infamous 1857 Dred Scott ruling, which denied citizenship to Black Americans, even those living in non-slave states. From there, however, the order veers sharply from the current academic and legal consensus, asserting, in highly misleading fashion, that “the 14^th Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” and that the amendment “has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’”  

Under the order, citizenship will no longer extend to U.S.-born children whose mothers were unlawfully present in the country at the time of birth if their fathers were not citizens or lawful permanent residents, nor to children whose mothers were lawfully present, but whose fathers were neither citizens nor lawful permanent residents. The latter category includes parents in the country on tourist or student visas, or work permits. Such children will not be issued any federal documents recognizing them as U.S. citizens, such as passports. 

Trump has long vowed to end birthright citizenship, accusing the undocumented of “poisoning the blood of our country” and turning the U.S. into “the garbage can of the world.” In 2015, he opened his presidential campaign by accusing Mexico of “sending” drug smugglers and “rapists” into the U.S. Then, as now, he wasn’t simply bemoaning the presence of undocumented immigrants or tapping into our long and sorry traditions of nativist scapegoating; he was accusing Mexico — and later, other underdeveloped nations — of deliberately staging an invasion of the United States. 

The invasion thesis operates at the heart of the MAGA movement and the legal theory behind the new executive order. Proponents of the theory, such as Texas Gov. Greg Abbott, assert that the country is facing an “invasion” of illegal aliens akin to a state of war. Other proponents, such as Yale Law School professor Peter Schuck, Heritage Foundation senior legal fellow Hans von Spakovsky and Jan. 6 coup-plotter John Eastman, contend that undocumented immigrants are not “subject to the jurisdiction of the United States” within the meaning of the 14^th Amendment because they owe allegiance to foreign powers. 

Nothing could be farther from the truth, or our actual history. In addition to contradicting the plain text of the 14th Amendment, the executive order departs from the original intent of the framers of the amendment, as well as the Supreme Court’s precedent decisions on birthright citizenship. 

Debates on the 14^th Amendment took place in 1866 in both the House and Senate, and were reported in the Congressional Globe, the precursor of today’s Congressional Record. 

The citizenship clause was introduced in the Senate by Jacob Howard of Michigan on May 30, 1866, as an add-on to the initial draft of the 14th Amendment formulated by the House. The clause tracked similar language contained in the Civil Rights Act of 1866 and followed the general principles of English common law and the ancient doctrine of jus solis (the “law of the soil’’) — the idea that all those born within the geographic boundaries of a nation are citizens at birth. (More than 30 countries today recognize the doctrine, including the United States, Canada and Mexico.)

In his introductory remarks, Howard noted the phrase “subject to the jurisdiction” of the United States meant that the citizenship clause would not apply to the children of ambassadors or foreign ministers, the children of occupying foreign soldiers, or to the offspring of Native Americans who claimed allegiance to tribal governments, but that the clause would “include every other class of person,” regardless of race or descent. 

The citizenship clause, Howard said, “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” 

The Supreme Court has endorsed Howard’s reading of the citizenship clause in at least four decisions: United States v. Wong Kim Ark (1898), dealing with the readmission into the country of a Chinese-American man whom the government sought to exclude because he had been born in the U.S. to parents who were subjects of the Chinese emperor at the time of his birth; Plyer v. Doe (1982), concerning the right of undocumented children to attend public schools; INS v. Rios-Pineda (1985), a deportation proceeding; and Hamdi v. Rumsfeld (2004), in which the court’s plurality opinion noted that a Guantanamo Bay inmate held as an “enemy combatant” was still a citizen entitled to due process because he was born in Louisiana.

Trump’s legal game plan is to get his executive order to the Supreme Court, which is now firmly in the hands of a six-member MAGA-friendly majority, including three justices nominated by Trump himself. Last year, the court came to Trump’s rescue in two landmark cases. In the first, it overturned Colorado’s decision to deny Trump a place on its 2024 presidential ballot under the 14^th Amendment’s insurrectionist clause in Trump v. Anderson; the second accorded him unprecedented immunity from criminal prosecution in Trump v. United States. He is counting on the Supreme Court to come to his rescue again on the birthright issue, either by overruling its prior decisions or holding them inapplicable to the current immigration crisis.  

Before the executive order reaches the Supreme Court, it will have to be reviewed by the lower federal courts. To date, six challenges to the order have been filed in federal district courts across the country. On Jan. 23, District Judge John C. Coughenour, who sits in Seattle and was appointed to the bench by Ronald Reagan in 1981, granted an emergency motion for a temporary restraining order filed by the attorneys general of Washington, Arizona, Illinois and Oregon. The order enjoins the Trump administration from enforcing the executive order for 14 days, pending another hearing set for Feb. 6 to determine if a preliminary injunction should be issued. 

“I’ve been on the bench for four decades, I can’t remember another case where the question presented is as clear as this one is,” Coughenour said during the Jan. 23 hearing, describing Trump’s order as “blatantly unconstitutional,” and adding, “There are other times in world history where we look back and people of goodwill can say, ‘Where were the judges? Where were the lawyers?’ Frankly, I have difficulty understanding how a member of the bar could state that this is constitutional.”

Coughenour is an old-school jurist who still believes in the words of the Constitution and the past decisions of the Supreme Court. Apparently, he doesn’t realize that, as George Orwell warned, the past can be erased.