Elizabeth Wydra is president of the Constitutional Accountability Center.
Since its ratification 150 years ago, the 14th Amendment to the Constitution has guaranteed that “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.” With the ratification of this amendment — after hundreds of years of chattel slavery followed by a bloody Civil War that cost hundreds of thousands of lives — America’s Second Founders decided to bend the arc of our Constitution toward progress.
The 14th Amendment is perhaps the greatest provision of our Constitution, in part because of its profound guarantee of citizenship to all who are born on American soil. After the Civil War, when members of the Reconstruction Congress assembled to draft the amendment’s birthright citizenship clause, they were writing against a backdrop of prejudice not only against African Americans but also immigrant communities including the Chinese and Roma. Much of the hostility against these immigrants was based on the same resentment toward immigrants in the United States today: that they would take away good jobs from people already here (while exhibiting a willingness to allow them to take jobs perceived as undesirable); that waves of immigrants were “invading,” or, in the words of President Trump, “infesting” the country; and that they were arriving with different cultures and languages.
Those who attack birthright citizenship, as did former Trump official Michael Anton in a recent Post op-ed, often go out of their way not only to misrepresent the plain meaning of the words of the 14th Amendment and those who drafted and ratified it, but also to ignore the racist and bloody history that required it in the first place. Sen. Lyman Trumbull, for example, a leading advocate in Congress for the citizenship clause, was quoted by Anton as somehow supporting his twisted reading of the clause.
Except it was Trumbull who answered the racists of his own time who worried about “naturalizing the children of the Chinese and Gypsies born in this country.” Trumbull said the citizenship clause “undoubtedly” would do that, and that a child of such immigrants “is just as much a citizen as the child of a European.” In other remarks, Trumbull made it even clearer, saying, “Birth entitles a person to citizenship, that every freeborn person in this land, is, by virtue of being born here, a citizen of the United States.”
Those who, like Anton, deny the plain meaning of the citizenship clause and its powerful history love to focus on the phrase “subject to the jurisdiction,” as if somehow they can make the clause say the opposite of what it actually says. They have even added to Trumbull’s statements — it’s amazing what slipping in an extra “[or]” will do — in ham-handed attempts to distort their meaning (which have been criticized across the ideological spectrum).
They’re wrong, of course. The Supreme Court has long defined “subject to the jurisdiction” to carve out from the birthright citizenship guarantee only the children of diplomats who are immune from prosecution under U.S. laws. Meanwhile, if undocumented immigrants or their children commit a crime in the United States, they can be and are punished under U.S. law. In other words, they are — obviously! — subject to the jurisdiction of the United States. If born on American soil, they are also citizens of the United States.
The American people understand all this. Birthright citizenship deniers are a small minority whose anti-immigrant zeal blinds them to the progressive promise that America’s Second Founders wrote into the Constitution so many generations ago. My organization asked voters last fall whether they favored or opposed birthright citizenship. A whopping 75 percent said they favored it, while only 20 percent did not. This result is not a surprise, because this is hardly a debate.
Virtually all the complaints from today’s birthright citizenship deniers were heard when the citizenship clause was debated 150 years ago. They lost. The Constitution won. Birthright citizenship is guaranteed to all those born on U.S. soil, regardless of the immigration status of their parents. After the ravages of chattel slavery that tore children from their parents and denied them equal citizenship, and the bloody Civil War that followed, our foremothers and forefathers decided to live out President Abraham Lincoln’s dream of “a new birth of freedom.” They enshrined the 14th Amendment into our Constitution so our future could be better than the horrors and hatreds of our past.
We haven’t arrived at that future yet. But as long as we choose to see it, there on the horizon it will be — like the promise of a “more perfect Union” itself — beckoning us forward.