Birthright citizenship is based on an interpretation of the Fourteenth Amendment to the U.S. Constitution, which was originally enacted to ensure civil rights for the newly freed slaves after the Civil War. Section 1 of the Fourteenth Amendment 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."
A serious and scholarly debate has been on-going for years (Sen. Harry Reid introduced legislation to revoke birthright citizenship for children of illegal aliens - see article X; video clip here) about whether illegal aliens (and temporary visitors) are, in fact, "subject to the jurisdiction" of the United States. Some scholars insist that the phrase has no real meaning of its own, but rather is essentially another way of saying "born in the United States."
Other scholars presume that "subject to the jurisdiction" means something different from "born in the United States," so they have looked to the original Senate debate over the Fourteenth Amendment to determine its meaning. They conclude that the authors of the Fourteenth Amendment did NOT want to grant citizenship to every person who happened to be born on U.S. soil.
"Subject to the jurisdiction"
The jurisdiction requirement was added to the original draft of the Fourteenth Amendment by the Senate after a lengthy and acrimonious debate. In fact, Senator Jacob Merritt Howard of Michigan proposed the addition of the phrase specifically because he wanted to make clear that the simple accident of birth in the United States was not sufficient to justify citizenship. Sen. Howard noted that the jurisdiction requirement is "simply declaratory of what I regard as the law of the land already." Sen. Howard said that "this will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
Sen. Reverdy Johnson of Maryland, who was the only Democrat to participate in the Senate debate, was even more explicit about the meaning of the jurisdiction
requirement: “[A]ll persons born in the United States and not subject to some foreign Power -- for that, no doubt, is the meaning of the committee who have brought the matter before -- shall be considered as citizens of the United States.” Sen. Johnson's reading of the jurisdiction requirement also is consistent with our naturalization requirements. Since at least 1795, federal laws governing naturalization have required aliens to renounce all allegiance to any foreign power and to support the U.S. Constitution. Such allegiance was never assumed simply because the alien was residing in the United States; instead an affirmative oath was required.
Sen. Lyman Trumbull of Illinois, one of the principle authors of the 14th Amendment, said that "subject to the jurisdiction of the United States" meant subject to its "complete" jurisdiction, meaning "not owing allegiance to anybody else."
In 1884 the Supreme Court held that children born to Indian parents were not born "subject to" U.S. jurisdiction because, among other reasons, the person so born could not change his status by his "own will without the action or assent of the United States." And "no one can become a citizen of a nation without its consent."
An inevitable position
In light of these and other statements made during the Senate debate over the Fourteenth Amendment, it appears clear that the authors
intended only to grant citizenship to persons born here who were also "subject to the jurisdiction" of the United States. They understood that phrase to have the same meaning as the phrase "and not subject to any foreign Power," included in the Civil Rights Act of 1866, which these same Senators had earlier drafted. And by "subject to the jurisdiction," they meant "subject to the jurisdiction of the United States in every sense," and "[n]ot owing allegiance to anybody else."
It would be difficult to argue that illegal aliens and temporary visitors are "not subject to [a] foreign [p]ower" or that they do not "ow[e] allegiance to anybody" but the United States. The Supreme Court, however, has never decided the issue. The closest it has come is a case involving the U.S.-born child of lawful permanent residents in which, of course, it held the child to be a U.S. citizen. In the absence of a ruling by the Supreme Court, it will remain up to Congress to clarify the meaning of the Fourteenth Amendment or to accept the status quo.
The Fourteenth Amendment Debate