ith the Supreme Court’s announcement last week that it will hear a case challenging President Trump’s executive order ending birthright citizenship for children of illegal immigrants, the internet has been awash in debate over the meaning of Section One of the 14th Amendment.
That’s the part that says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” At issue is what the phrase, “subject to the jurisdiction thereof,” really means. Does it mean anyone physically present inside U.S. territory, even foreign nationals who illegally crossed the border? Are the children of those people American citizens simply because they were born on U.S. soil?
That’s the view of those who support birthright citizenship today. According to them, citizenship is simply the product of one’s birth. They think the 14th Amendment is quite clear on this point, and that the men who drafted it in 1866 and ratified it two years later had nothing more in mind than to tie citizenship to the accident of birth.
There are however two major problems with this view, one jurisprudential and one practical. Because the first problem leads to the second, let’s take them in order.
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