Citizenship and the Constitution: A Legal History Lesson for Our Times

The question of who is a citizen of the United States has become a hot button issue in American politics. Donald Trump and others want to change the historic American rule that grants citizenship to people born in the United States. But, any attempt to take citizenship from people born in this country would flagrantly violate the United States Constitution and existing statutes and legal precedents, and run counter to the entire legal history of the country. With a few exceptions, American law since the Constitution was written has always been that "all persons born" in the United States are citizens of the United States. This concept was enshrined in the Constitution when the Fourteenth Amendment was ratified in 1868, and has been upheld by courts and Congress ever since.

The Founders assumed that people born in the United States were citizens even if their parents were aliens. In the 1790s James Madison argued that someone born in America before the Revolution was a natural born citizen of the United States, even though he was studying overseas when the Revolution took place. Madison's point was that birthright citizenship was based on where you were born, and not where you were raised or lived.

This rule was based on the legal principle of jus soli ("the right of the soil") which meant that you were a citizen of the place where you were born. Lynch v. Clarke (1844), which all American courts generally followed, illustrates this rule. Julia Lynch was born in New York while her parents were temporary visitors, but shortly after her birth, Julia's parents moved back to Ireland, where she remained for the next twenty years. Nevertheless, the court ruled that she was an American citizen at the time of her birth, and that her long residence in Ireland did not affect her birthright citizenship.

However, in Dred Scott v. Sandford (1857) the Supreme Court held that only whites could be citizens of the nation, and blacks born in the United States - whether free or slaves - could never be considered citizens of the nation. This controversial ruling was the law of the land until it could be reversed by federal law or a constitutional amendment, or both. But the decision led to the odd result that in 1860 free black men in six states voted for members of Congress and presidential electors under state law but were not considered citizens of the United States under federal law.

The Fourteenth Amendment, ratified in 1868, reversed this by finally setting out what constitutes American citizenship: "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." Thus, since 1868 all persons born in the United States were citizens at birth, except for the very small category of those "not subject to the jurisdiction" of the United States.

This language is confusing to some people, but no one in 1868 had any doubt what it meant. This was a standard legal term for foreign diplomats and their families, who are not "subject to the jurisdiction" of the United States. In Elk v. Wilkins in 1884 the Supreme Court also held that an Indian born on tribal lands, and subject to tribal law, was not a citizen of the United States unless Congress made them citizens "under explicit provisions of treaty or statute to that effect." In 1924, in the Indian Citizenship Act, Congress did just that, declaring that Indians born in the United States, even on tribal lands, were citizens at birth.

Thus, under the Fourteenth Amendment all children born in the United States (except the children of foreign diplomats) are citizens at birth. This includes the children of citizens, immigrants, tourists, refugees, and anyone else found in the United States. Whether we like it or not, the American-born children of undocumented aliens are citizens of the United States at birth.

Significantly for the current debate, the passing of the Fourteenth Amendment actually made the children of illegal immigrants citizens of the nation. In 1808 Congress prohibited the importation of slaves from Africa and other places. Despite this law, smugglers had brought thousands of African slaves into the country after 1808. These people were not born in the United States and thus they did not become citizens under the Fourteenth Amendment. But under the Amendment their American-born children were citizens at birth. The framers of the Fourteenth Amendment fully understood that the American-born children of what were effectively illegal aliens, were birthright citizens of the United States under the Amendment.

Meanwhile, in the 1850s more than 40,000 immigrants from China arrived in the United States, mostly going to California. They clearly could not become citizens under the Naturalization Act of 1790 because they were not "white." Under Dred Scott their children could not be citizens at birth because the Court had held that only white people born in the U.S. were citizens at birth.

In 1870 Congress allowed people of African ancestry to become naturalized citizens, but still prohibited the naturalization of Asian immigrants. In 1882 the United States severely limited Chinese immigration under what is known as the Chinese Exclusion Act. Subsequent laws prohibited Chinese immigrants from leaving the United States and then returning. But, what was the status of the American-born children of Chinese immigrants?

In 1898 the Supreme Court gave the answer in United States v. Wong Kim Ark. Mr. Wong was born in California to parents who were immigrants from China. In 1894 Mr. Wong visited his family in China, coming back to the United States in 1895. Customs officials would not let him return to the country of his birth, arguing he was an "excluded" Chinese immigrant and that people of Chinese ancestry could not be American citizens.

But, in upholding Mr. Wong's citizenship, the Court explained that under the Fourteenth Amendment "all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth." The Court noted this was the "settled and definite rule of international law, generally recognized by civilized nations," was "the ancient rule of citizenship by birth within the dominion," and in the Fourteenth Amendment "the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms." Thus, Mr. Wong was a natural born citizen of the United States because he was born in the United States, even though his parents were aliens and could never become citizens.

Wong Kim Ark offers some guidance to the status the American-born children of undocumented aliens. The United States is free to allow or never allow undocumented aliens to become naturalized citizens, just as the nation refused to allow Chinese immigrants to become citizens. But, under Wong Kim Ark, the American-born children of aliens ineligible for citizenship are natural born citizens under the Fourteenth Amendment.

Whatever the nation decides to do about immigration, it cannot take away American citizenship from those people who were born here, even if their parents are undocumented. Such children are natural born citizens, or birthright citizens. The history of the citizenship clause of the Fourteenth Amendment and indeed the entire history of the United States, suggests that political leaders should think long and hard before they try to change the "settled and definite rule of international law, generally recognized by civilized nations," which was "the ancient rule of citizenship by birth within the dominion."