Walter Dellinger is an attorney in Washington and the Douglas B. Maggs Professor Emeritus of Law at Duke University. He served as head of the Office of Legal Counsel from 1993 to 1996.
President Trump has now proposed altering a principle that is older than the Constitution itself, announcing that he intends to sign an executive order ending the birthright citizenship that now extends to all children born on U.S. soil. Presumably, that would mean treating those born in the United States to noncitizen parents as noncitizens themselves.
This is unlawful under existing statutes and is unconstitutional under the 14th Amendment. It is also a profoundly bad idea. The birthright citizenship rule is not simply some loophole needing to be closed (as Vice President Pence characterized it earlier this week), or an “absurd policy” as Sen. Lindsey O. Graham (R-S.C.) said on Twitter. It is a fundamental part of who we are as a people. The proposed change, as constitutional law professor Garrett Epps put it, “would, at a stroke, create a shadow population of American-born people who have no state, no legal protection, and no real rights that the government is bound to respect.”
The constitutional principle with which Trump proposes to tamper flows from some of the deepest wellsprings of American history. From the earliest days of our nation, all those who were born on its soil and governed under the flag were considered citizens. The simple fact of birth here in the United States was what mattered.
And then came Dred Scott v. Sandford . In a catastrophic decision, the Supreme Court created a monstrous exception to the common-law birthright rule, holding that no persons of African descent — including free people — or their descendants could ever be citizens of the United States, regardless of their birth here.
Repulsion toward the Dred Scott decision led to emergence of the Republican Party and ultimately the presidential candidacy of Abraham Lincoln. In 1857, shortly after the decision was handed down, Lincoln declared in his first of many speeches on the subject that defenders of Dred Scott had committed themselves to a principle that contradicted — and that made a “mere wreck” and “mangled ruin” — of the Declaration of Independence.
The nation soon plunged into the heart of darkness, claiming hundreds of thousands lives in a battle for freedom. From that experience, we learned that our country should never again trust judges or politicians with the power to decide that some people born in the United States should not be citizens.
The opening sentence of the 14th Amendment is unequivocal: “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 narrow exception for those born here but not “subject to the jurisdiction” of the United States was meant to include people deemed at the time immune from U.S. laws — principally, children born in the United States to foreign diplomats, and the children of native tribe members.
The Supreme Court, in 1898’s United States v. Wong Kim Ark , concluded that the 14th Amendment meant what it said, and it held that a child born in California to Chinese parents (who under the Chinese Exclusion laws could never become citizens) became an American citizen at the time of his birth.
Because the rule of birthright citizenship is embedded in the Constitution as well as in statute, any attempt to change it by executive fiat is flatly unlawful and unconstitutional. It would be shocking if executive-branch officials acted in violation of these clear provisions.
It is deeply troubling that the president would put forth such a proposal in seeming disregard to the Constitution. The principle of birthright citizenship has been recognized by courts and attorneys general for more than a century. Before stating his intent to change this fundamental principle, the president owes it to all of us to produce a Justice Department analysis showing why this century of law is wrong.
Further, the vice president’s statement on Tuesday that “the Supreme Court has never ruled on whether . . . the language of the 14th Amendment . . . applies specifically to people in the country illegally” is even more startling. He seems to be suggesting there are children born in the United States who lack not only citizenship but other rights beyond the birthright-citizenship issue.
We have long accepted there should be no inquiry into whether a person came from the right race, cast or bloodline in establishing citizenship. Other nations may follow a different path. But our unique history has taught us that the bright-line fact of birth on U.S. soil is fundamental. No one can go back and find that your grandparents’ 1940 citizenship papers were incorrect, therefore they were not legally entitled to be citizens, therefore neither were their children and therefore neither are you. In the United States, every generation born here gets a fresh start.
When we think about what makes the United States exceptional, one facet stands out: We are a nation whose nature changes with the arrival of each new generation. That continuing evolution of the American polity is what gives us our special energy.
The end of birthright citizenship would create a permanent caste of aliens — generation after generation born in the United States but never citizens. Since the Civil War, America has thrived as a republic of free and equal citizens. So it should remain.