Birthright Citizenship Is A Constitutional Guarantee
No President can take away constitutional rights with the stroke of a pen
Guest Post: Chris Madison is a practicing attorney with a law degree from the California Western School of Law. Today he provides DS readers with a legal perspective on the controversies surrounding the 14th Amendment and birthright citizenship.
Birthright citizenship IS a constitutional right that cannot be revoked or amended by the pen stroke of one person, regardless of who that person happens to be. We live in a country governed by laws that flow from the United States Constitution. True conservatives cherish this document and the system of laws and fundamental rights it establishes. One of those fundamental rights is birthright citizenship.
The 14th Amendment of the Constitution, Section One, states in part: "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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
Rather than debating the possible intentions of the framers or dissecting case law over the past 200-plus years, let us focus on the actual language that made it into the Constitution. A plain reading of these words makes their meaning clear to any objective reader with basic comprehension skills. The first phrase reads, "All persons born … in the United States." This phrase explicitly applies to every person, regardless of sex, race, political affiliation, or social status. It does not account for a person’s parents, their integrity, moral character, or intelligence. Nowhere does it state that a person must be born to parents who are citizens or possess a particular immigration status. It is a direct statement: "ALL PERSONS."
Jurisdiction
The next phrase, "and subject to the jurisdiction thereof, are citizens of the United States," serves as the focal point of those attempting to eliminate this fundamental right without amending the Constitution. To understand its meaning, defining key terms is essential. Jurisdiction, in the simplest terms, is power or authority. Does a court or governing body have the authority to impose laws and mandates on a person or group? To be subject to something means to be under its authority or control. Put simply, when someone is subject to a country’s jurisdiction, that person is bound by its laws.
Notably absent from the 14th Amendment is any mention of rights or privileges. There is no requirement that a person born in the United States must pre-qualify for constitutional protections. No clause states that the parents of a person born here must be eligible for rights or privileges. The text does not mention an individual’s parents at all. The sole requirement is that the individual be born on U.S. soil and subject to its jurisdiction.
A plain reading of the 14th Amendment leaves only one logical conclusion: all children born in the United States are, by birth, automatically citizens. They must be, by virtue of their birth on U.S. soil. This is the only country they can claim as their own, and no other nation holds a higher claim over them. Having never been anywhere else, they naturally fall under U.S. jurisdiction.
If the argument is that the United States does not have jurisdiction over individuals born within its borders, then the country has no legal authority over them. This logic would mean they are not subject to any U.S. law or executive order. In such a case, the government would have no power to remove them because they would not be violating any enforceable law.
Likewise, it is illogical to argue that these individuals are not subject to U.S. jurisdiction because their parents are not. If that were true, then those parents could not be deported for breaking the law. If undocumented parents were not under U.S. jurisdiction, they would have committed no legal violation for which they could be deported or punished. This argument collapses under its own contradictions.
Real Solutions
We cannot have it both ways. We cannot claim to love the Constitution and seek to conserve the values that made this country great while simultaneously attacking constitutional rights and undermining the very principles we claim to uphold. Doing so is a betrayal of the ideals we profess to defend. Most of us, at some point in our familial history, have benefited from birthright citizenship. In asserting that the framers never intended this right for individuals born to the "wrong" kind of parents, we risk questioning the legitimacy of our own citizenship.
There is little debate that our immigration system is broken. In working with my Latino clients over the past few weeks—many of whom are legal residents or citizens—I have witnessed their fear firsthand. They feel targeted despite having done nothing wrong. Many are apprehensive about going out in public. This is not what the United States is about. This is not what someone who loves the Constitution or conservative values should support. Removing birthright citizenship and bullying minorities does not solve our very real immigration challenges. It is time for Congress to act like the co-equal branch of government it is meant to be. Instead of bemoaning the issues and deepening divisions, lawmakers must take responsibility and deliver real solutions. We should all be demanding that they do so.
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