On his first day back in office, President Trump issued an executive order (EO) that attempted to limit the scope of “birthright citizenship”, which in turn has sparked a national debate. The Supreme Court has recently decided to take up the question in its current term and, conveniently, the Wall Street Journal on Saturday ran an article that underscores why the current, expansive view that nearly all babies born in this country are U.S. citizens at birth may not be a perfect fit for the modern age.
Dred Scott and the 14th Amendment
Congress has “plenary power” over immigration because Article I, sec. 8, cl. 4 of the U.S. Constitution gives the legislative branch the authority “To establish an uniform Rule of Naturalization”. Simply put, you can’t have a uniform rule governing which aliens can naturalize — that is be transformed into citizens — without rules governing which aliens are allowed in, and which must leave.
The parameters of U.S. citizenship, on the other hand, are set forth in the first sentence of section 1 of the 14th Amendment to the U.S. constitution, which 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.”
The 14th Amendment wasn’t ratified until July 1868, prior to which, with one big exception, citizenship was determined according to common law principles, pursuant to which “all free persons born within a state or nation were citizens thereof”.
The big exception was the Supreme Court’s 1857 opinion in Dred Scott v. Sandford.
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