When I received notifications from my Google Alerts last week, I immediately knew that the topic of birthright citizenship was once again making headlines. As a historian who delved into this subject in my book, Birthright Citizens, I have a professional and enduring interest in the debates surrounding it. The book traces the development of birthright citizenship from its roots in the discussions among Black Americans at the beginning of the 19th century to the ratification of the Fourteenth Amendment in 1868, which established that almost anyone born on U.S. soil is a citizen.
Florida Governor Ron DeSantis, in an attempt to boost his presidential campaign, pledged to overturn more than 150 years of law and policy and, as he stated, “eliminate the notion that children of undocumented immigrants are entitled to birthright citizenship if they are born in the United States.” A spokesperson for another GOP presidential candidate, Nikki Haley, also expressed opposition to birthright citizenship for those who enter the country illegally. Meanwhile, entrepreneur Vivek Ramaswamy’s campaign proposed the reform of birthright by introducing new citizenship requirements. Having witnessed similar outbursts in recent years, such as in 2018 when then-President Donald Trump raised the idea of eliminating birthright, I know that any proposal to alter our citizenship system is bound to ignite a debate.
However, we must ask ourselves: What is the true essence of this debate? Why does it resurface time and again? When we discuss birthright citizenship, we are essentially discussing democracy. It is a pivotal component of democracy that grants equal status to every individual born in this country, bestowing upon them the same rights of citizenship.
Let’s take a moment to reflect. Although the 1787 Constitution did not explicitly bar Black Americans from citizenship, it also failed to clearly articulate the criteria for determining an individual’s citizenship. Consequently, Black Americans were subjected to disparate treatment under the law. Many authorities leaned towards the belief that color, with its implied association with slave status, disqualified Black Americans from citizenship. Black activists embarked on a protracted campaign, asserting that based on the Constitution and the principles of natural rights, Black people were citizens by virtue of their birth on American soil.
Unfortunately, the U.S. Supreme Court’s 1857 ruling in the case of Dred Scott v. Sandford declared that citizenship was beyond the reach of Black Americans due to their race. However, this situation was rectified during the Civil War and Reconstruction era. First, in 1862, Attorney General Edward Bates issued an opinion, followed by the passage of the Civil Rights Act of 1866, and eventually, the first clause of the Fourteenth Amendment solidified birthright citizenship in the Constitution, guaranteeing citizenship to Black individuals and all those born in the United States, with a few exceptions.
The current calls to abolish birthright citizenship are largely a form of political theater, often utilized to convey a strong stance on immigration. DeSantis, for instance, revealed a rather vague strategy, stating that he would “compel the courts and Congress to finally address this failed policy.” Similarly, Trump, despite generating significant buzz around the idea of eliminating birthright citizenship during his presidency, never provided concrete details on how he intended to achieve this, and ultimately, nothing came to fruition. The interpretation of the Fourteenth Amendment remains unchanged from before the Trump era.
While campaign promises to eliminate birthright citizenship may capture attention, lawmakers have quietly pursued this objective through other means. It is noteworthy that in every session of Congress from 2007 to 2021, a Republican representative put forth the Birthright Citizenship Act. This legislation sought to redefine a minor clause in the Fourteenth Amendment, one that restricts birthright status to individuals “subject to the jurisdiction” of the United States. In 1868, this exception excluded the children of visiting diplomats and Native American sovereign nations. Presently, some lawmakers propose broadening the scope of this clause to include children as subject to U.S. jurisdiction, and therefore birthright citizens, only if they have one parent who is a U.S. citizen or national, a permanent resident residing in the United States, or an alien serving in the Armed Forces. Opposition to birthright citizenship simmers in Congress but warrants our vigilance to prevent it from boiling over.
When politicians engage in debates about birthright citizenship, they also raise legal questions regarding the authority to interpret the Fourteenth Amendment. Trump suggested that, through an executive order, he possessed the power to redefine who is subject to the jurisdiction of the United States and consequently a birthright citizen. Members of Congress have similarly argued for legislative control over the amendment’s meaning. However, many legal experts rightly assert that the ultimate arbiter of the Constitution’s interpretation is the U.S. Supreme Court. The issue of birthright has not yet been tested by our recently constituted Court, and we must acknowledge the possibility that it might defer to either Congress or the president in interpreting its meaning.
When Trump first proposed undoing birthright, my primary concern revolved around the harm it could inflict on immigrants and their children who were born in the United States. Today, while this remains a significant worry, my concerns have expanded. The calls to abolish birthright, albeit disguised as immigration reform, ultimately seek to dismantle a fundamental principle of our democracy: equal access to citizenship. Birthright establishes a level playing field for citizenship, subjecting everyone born here to the same criteria, regardless of their lineage. It ensures that citizenship is not bestowed or withheld based on political beliefs, race, religion, culture, gender, or sexuality. Birthright protects those born here from political leaders who would use citizenship as a reward or punishment.
The manipulation of citizenship as a tool is precisely what the Fourteenth Amendment sought to prevent. In 1868, birthright nullified the Dred Scott decision, safeguarding the rightful belonging of Black Americans to this nation regardless of any debate or political whim. Since its ratification, the Fourteenth Amendment has protected some of the most vulnerable individuals among us, including generations of children born to immigrant parents. It has safeguarded marginalized, despised, and unpopular people, who, upon birth, do not need to fear exile or expulsion. Birthright citizenship has always been a solution rather than a problem, and the sustainability of our democracy relies on preserving it.
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