
Shortly after taking office for the second time, Donald Trump issued an executive order purporting to end birthright citizenship for those born in the United States who did not have at least one parent who was either a U.S. citizen or a legal permanent resident. This form of citizenship is guaranteed in the 14th Amendment to our Constitution. The 14th also says that a requirement of this birthright citizenship is that the child so born must also be “subject to the jurisdiction of” the United States. Here is a plain English explanation of what that actually means.
Full Text of the 14th Amendment, §1
“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; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Of course the first part is pretty straight-forward: a child born in the United States means that the baby was delivered within the United States. It’s the “subject to the jurisdiction thereof” that seems a bit less straight forward.
Here’s the thing: the “subject to the jurisdiction thereof” can really be read as an exclusionary rule, not an inclusionary rule. What I mean by that is that at the time of the drafting of the 14th Amendment, and still for the most part, there are classes of people who are not subject to the jurisdiction of the United States. So the “subject to the jurisdiction thereof” can actually be read as “everybody except these people”.
This list of people who are not subject to the jurisdiction of the United States is short and, by necessity for this article, is going to be quick and dirty. There are actually entire classes in law school taught on jurisdiction because generally it is a very complex subject, on which many precedent-setting Supreme Court decisions turn. But happily for us, for this article, none of that is relevant. Here they are.
People Who Are Not Subject to the Jurisdiction of the United States
Diplomats and dignitaries from other countries
Armies from other countries
Note: At the time of the ratification of the 14th Amendment Native Americans were not subject to the jurisdiction of the United States, and were not considered citizens of the United States. They are now.
So What Does This Mean for Donald Trump’s Executive Order Attempting to Do Away with Birthright Citizenship?
The bottom line is that we have embedded in our Constitution a given right that so long as you are born in the United States to anyone other than a foreign diplomat or dignitary, or member of a foreign army, then you are a U.S. citizen, period. There is no requirement that one of your parents be a citizen, the only requirement is that they not be a foreign diplomat or dignitary, or a member of a foreign army. And the only way to get around this – to change it – is to amend the constitution. No executive order, and no law, can end-run this right; any effort to do so is unconstitutional. But that doesn’t stop someone from trying.
President Trump’s executive order is an attempt to take away that right for children born in the U.S. who do not have at least one parent who is already a citizen or a permanent resident. This executive order is clearly unconstitutional and will not withstand constitutional challenge. But it will allow him to say “I tried.” It’s all political theater.