Just two weeks into what can be described as the second term of Trump’s presidency, the rhetoric has already reached a boiling point. Critics are vocally opposing his groundbreaking Day 1 executive order that challenges the conventional perspective on birthright citizenship for children born in the U.S. to non-citizen parents. Many pundits argue passionately that Trump’s order flies in the face of the Constitution and settled law, with some even labeling it as “nativist” or “racist.”
Much like the historical Bourbons, certain American elites seem to be repeating past mistakes by stubbornly clinging to dated views. When it comes to birthright citizenship, their self-righteous criticisms do little to reflect the legal realities. Contrary to their objections, Trump’s January 20th executive order on birthright citizenship is both legally robust and fair. He deserves recognition, not rebuke, for choosing such a bold move at the outset of his second term.
Looking back at the evolution of the Citizenship Clause in the 14th Amendment, which was ratified in 1868, you’ll find it 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.” This clause was specifically designed to overturn the controversial 1857 Supreme Court case, Dred Scott, ensuring that Black Americans would be recognized as full citizens.
The clause was originally meant to apply to Black Americans, as they had long been deemed “subject to the jurisdiction” of the United States, even before emancipation. Unlike them, Native Americans were not considered under this jurisdiction until 1924, when the Indian Citizenship Act was passed.
Today’s debate centers around whether in 1868, foreign citizens—here legally or illegally—were seen as “subject to the jurisdiction” of the United States. The answer is, they weren’t.
During the post-Civil War era, the Republican-majority Congress aimed to enshrine the intentions of the Civil Rights Act of 1866 within the 14th Amendment. Representative James Wilson of Iowa, a pivotal figure in its drafting, stressed that the amendment was “establishing no new right, declaring no new principle.” Similarly, Senator Jacob Howard of Michigan stated that the Citizenship Clause was “simply declaratory of what I regard as the law of the land already.”
The pertinent section of the Civil Rights Act of 1866 clarifies: “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.” In essence, “subject to the jurisdiction thereof” inherently excludes those “subject to any foreign power.” As Senate Judiciary Committee Chairman Lyman Trumbull of Illinois noted during debates, it refers to those under the “complete” jurisdiction of the United States, without allegiance to anyone else.
Accordingly, a correct interpretation of the 14th Amendment does not constitutionally mandate granting citizenship to children born in the U.S. to non-citizens. Whether Congress decides to enact more inclusive laws is a separate issue.
For many years, this perception went unchallenged. In the 1873 “slaughterhouse cases,” Justice Samuel Miller noted that the Citizenship Clause was meant to exclude the children of foreign citizens born within the U.S. In the 1884 Elk vs. Wilkins case, Justice Horace Gray defined being “subject to the jurisdiction” as being fully under U.S. political jurisdiction and allegiance.
Admittedly, Gray reversed his stance in the 1898 United States vs. Wong Kim Ark case, ruling in favor of some birthright citizenship for children born to legally present non-citizens. However, this decision specifically applied to “resident aliens” owing “allegiance” to the U.S., not to those unlawfully present.
Gray’s interpretation in Wong Kim Ark does not extend to children of parents who are in the U.S. illegally. The addition of a nonbinding footnote in the 1982 case, Plyler vs. Doe, by Justice William J. Brennan Jr., suggesting otherwise, does not equate to established law.
Debates on this facet of birthright citizenship are vibrant and unresolved. However, the original intention of the 14th Amendment’s authors is explicit. They would have been shocked by the thought of granting citizenship to children of those who breached U.S. laws. They likely anticipated the negative incentives such a policy might create, as many now seem to overlook.
The critics quick to denounce President Trump have got it wrong. Once again, he stands correct in his interpretation and application of the law.
Josh Hammer serves as a senior editor-at-large at Newsweek. This piece was created in partnership with Creators Syndicate. You can follow him at @josh_hammer.
