Birthright Citizenship: Is it constitutional?

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The United States Constitution 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 particular subset of this obvious provision that is sometimes questioned is jus soli, literally meaning, right of the soil.

This is and was a part of English Common Law, which is a good point of reference for any ambiguity, as though there were any ambiguity. It means that if you are born here you get to be a citizen here. A fairly common exception made to jus soli birthright citizenship is for diplomats or similar, people who are also treated to some degree as though they are not actually here at all. So, if a diplomat can commit a felony but not be prosecuted, then they can’t drop a baby and have it be granted citizenship. But otherwise, the interpretation, though fought many times in the courts by nationalists and other asshats, is straightforward.

The reason this is even a thing right now is because the Republicans, under Russian-owned and controlled Donald Trump, are against it, and Trump plans to produce an executive order reversing jus soli for brown people. What’s next? Removing citizenship from anyone who’s home land is not an actual state? (Like Puerto Rico?)

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12 thoughts on “Birthright Citizenship: Is it constitutional?

  1. There is no doubt this announcement is designed to be fodder for the racists who support him, but I do have a question: is it possible to repeal this with an executive order?

    1. dean:

      Anything put into place by executive order can be undone by a subsequent executive order.

      Ultimately the Supreme Court will find this for the Dreamer executive order also, in my opinion.

  2. I think the weight of authority is that if you are born in the United States you are a citizen, unless you are the child of a diplomat. So I agree with you Greg.

    I don’t think this executive order will be upheld in court.

    To change the rules for citizenship the 14th amendment must be changed.

  3. I recently listened to an interesting episode of Backstory (podcast) about citizenship, and while it was not explicitly addressed, I’m guessing that jus soli has been tested in courts in association with various laws passed to keep various ethnic groups (ie, Asians, mainly Chinese and Indians) from getting citizenship, or in relation to citizenship of women who marry non citizens, etc. (referring to their children, of course).

    I do agree this is probably mainly arm waving. I’m not sure how lighting one’s hair on fire in this manner is going to help with the election.

    1. Actually women who were US citizens who married foreigners did at one time lose citizenship (early 20th century at least); I have a female ancestor whose application form for a US passport in 1914 lists her second marriage to a US citizen as her reason for citizenship despite being born in the US (her first marriage was to an UK/Canadian citizen).

  4. Trump believes he can do a number of things that he can’t do.* A surprising number of people seem to think that a president is essentially a term-limited king — or votes as if they do. That may be why they are apt to turn on a president when he doesn’t accomplish everything they expect him to accomplish.

    *Jefferson Davis is quoted in Shelby Foote’s trilogy on the Civil War as saying something similar to that about a comment by one of his less successful Generals, Braxton Bragg.

  5. This likely has two purposes, the first of which is to simply fly a test balloon and see if they can get some traction on getting their voters motivated, or to goad the Democrats into saying something that will hurt them in the elections.
    I think this could also be a test case for how far the supreme court is willing to reinterpret constitutional language to fit republican objectives. One particular lawyer (Anton) has specifically claimed the “and subject to the jurisdiction thereof” is a citizenship (or at a bare minimum, legal resident) test for birthright citizenship. If the executive order is put in place it is almost certain to reach the supreme court. This is win-win for republicans. If the order is shot down then they can brag about judicial independence, but if the order is upheld then they get their win, and the knowledge of the security of future executive orders before the courts.

    1. Re: “if the order is upheld then they get their win, and the knowledge of the security of future executive orders before the courts.”

      That may not be a pure win though. Courts are generally prone to going along with past decisions and, considering all the howling about tyranny whenever President Obama issued an executive order, they are setting themselves up for trouble if they ever lose control of the Presidency and/or the Congress.

      My opinion is that the post-modern version of the GOP hasn’t been in power long enough yet for their resulting ineptitude to become obvious enough to penetrate through enough of the potential voting public. Ignoring realities is not a game for the long-term.

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