The Blog

Could Trump Possibly Be Right: Are Legal Scholars Really Divided On The Issue Of Birth-Right Citizenship?

The view that the constitution does not require birthrate citizenship is held by a handful of scholars and not "many," as Trump boasts.
This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.

"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." 14th amendment to the Constitution of the United States

The language of this amendment seems straightforward on its face, but could Republican presidential aspirant Donald Trump be right when he authoritatively asserts that "many of the great scholars say that anchor babies are not covered?" Of course, by "anchor babies" he is speaking, however pejoratively, of the infants of undocumented immigrants, usually from Mexico.

As with so many other things, Trump may have conjured up this statement on a whim given he has never named a single scholar he is talking about. But interestingly, there is some disagreement on the issue among legal scholars with most of the few who disagree with birthright citizenship having a conservative bent. There is not, however, universal agreement even among conservatives and the issue is not strictly partisan.

As context, there are about 300,000 babies born to undocumented immigrants who become citizens every year.

Interestingly, the phrase in the 14th amendment "and subject to the jurisdiction thereof" provides a wrinkle to its otherwise straightforward language. But such wrinkles are where shrewd lawyers make their fortunes! For example, the children born in the U.S. to diplomats from foreign countries are not considered American citizens because their parents are not subject to the "jurisdiction" of the United States.

"The 14th Amendment became part of the Constitution in 1868 following the Civil War. The amendment established birthright citizenship and equal protection under the law for all citizens, making newly freed slaves full American citizens."

"Today, this clause is widely understood to mean that the Constitution requires that everyone born on U.S. soil -- regardless of parents' citizenship -- is automatically an American citizen."

"The most relevant Supreme Court ruling was in an 1898 case, United States vs. Wong Kim Ark. The court decided that a man, Wong Kim Ark, was an American citizen because he was born in America, even though his parents were Chinese immigrants. Because his parents were legal residents, the case does not directly apply to children of undocumented parents."

Therefore, the Court has never adjudicated the issue directly. If the constitution does not require birthright citizenship, then Congress may be able to change the law without passing a constitutional amendment, which is a significant hurdle.

However, the view that the constitution does not require birthrate citizenship is held by a handful of scholars and not "many," as Trump boasts. Interestingly, one of the few to hold the minority position is the esteemed federal judge and economist Richard Posner of the 7th Circuit, appointed by President Ronald Reagan. Posner was recognized "by The Journal of Legal Studies as the most cited legal scholar of the 20th century."

"As a judge, ..., Posner's judicial votes have always placed him on the moderate-to-liberal wing of the Republican Party, where he has become more isolated over time." In 2012, Posner pointed out, "I've become less conservative since the Republican Party started becoming goofy." (And who would disagree with Posner on that critique?)

He maintains that most countries outside the Western Hemisphere do not require birthright citizenship. Paradoxically, if we abolish birthright citizenship, we are increasing the population of undocumented immigrants, as Posner points out. He argues: "One would have, as in some European countries, generations of illegals--persons who had never lived anywhere else, who could not feasibly be deported (and to where?--the country of origin of their grandparents, a country with which they had no connection, and the language of which they did not speak?)."

Such a status would create a second-tier citizenship for those born in America, but without the full rights and protections of American citizens. Joblessness would presumably climb much higher considering this group would have no legal right to work and it may create generations of people not fully assimilated who are outside the mainstream economy; a generation of disaffected, alienated inhabitants as seen in Europe among segments of the Muslim population.

And wouldn't we lose much of our much ballyhooed American exceptionalism that conservatives are always vaunting with the adoption of such a draconian policy? Our exceptionalism is girded by the premise that we are all created equal with equal protections in the eyes of the law. Something resembling a caste something would remain where diligent study and hard work go unrewarded. Such a policy is unworkable on its face and surely would severely damage the perception of America around the globe. And what about the optics of cold-heartedly deporting millions for the unspeakable crime of being born in America?

So, although there is some disagreement by respected legal scholars over the issue of birthright citizenship, those who oppose it are in the minority, "far outweighed by those who believe the 14th Amendment requires birthright citizenship for children of undocumented immigrants." Trump, as unusual though it may be, is partly right, although surely he does not countenance the implications of his statement!

Popular in the Community