Donald Trump has finally brought up a legitimate point in the ongoing debate over illegal immigration (as opposed to his usual economically illiterate xenophobic racially-tinged fear mongering). The courts have long used the 14th Amendment as a justification for birthright citizenship, that is, the notion that one instantaneously acquires US citizenship merely by being birthed within US territory. This interpretation has created the phenomenon known as “anchor babies”, that is, the children of immigrant women (legal or otherwise) who enter the US merely to give birth. By virtue of the citizenship status of the newly birthed, the entire extended family may to varying degrees be granted residency status. Unconditional birthright citizenship (‘Jus soli’, right of the soil) is a peculiarity of the New World. It is almost exclusively found in the Americas. Everywhere else it is unknown or exists only with many conditions. The rest of the world follows a system of ‘jus sanguinis’ (right of the blood) which means that citizenship flows from the citizenship status of the parents. On its face this does seem to be the more practical approach. Would you want your child saddled with the citizenship of some foreign land you just happened to be travelling through at the time of her birth? Indeed that has happened to a number of “accidental Americans” who have never lived in the US but are labeled as tax cheats by the IRS because of an accident of birth location.  Birthright citizenship seems to be primarily a legal artifact found among those former New World countries that sought to rapidly increase populations. In the US the amendment merely codified what was already common law practice at the time while also unambiguously establishing citizenship for former slaves.

Contrary to popular opinion, birthright citizenship in the US is not entirely unconditional. The condition it hinges on is normally ignored as its meaning in modern parlance is somewhat opaque to those without a legal or history background. The amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and The States wherein they reside.” The key clause here is “and subject to the jurisdiction thereof.” So citizenship requires not only that you be born within US territory but that you also be subject to the jurisdiction of the US government at that time. You could only be subject to such jurisdiction if your parents (your legal guardians) were subject to such jurisdiction. At first glance it would seem that applies to anyone in the US, citizen or not. After all, anyone who kills someone or rob them, is “subject” to US laws against it, right? Well yes that is true, but the key word our modern ears need is the one that was obvious and thus unspoken for those in the 19th century. The latent word is “complete” as in “the complete jurisdiction thereof”. “Complete jurisdiction” is redundantly the same thing as “jurisdiction” because both stand in contrast to “partial jurisdiction”. Partial jurisdiction means one is subject to laws against murder, theft, etc., but likewise are not subject to laws related to the obligations of citizens. A foreigner (or more legally precise, an alien) is a citizen of another state and thus by virtue of that foreign allegiance cannot be subject to the complete jurisdiction of the US. (e.g. an alien is not required to serve on a jury, may not vote, may not be drafted, etc).

So, in short this means the proper interpretation of the “citizenship” clause of the 14th amendment is that if both parents are already citizens of another state (owe allegiance to another state, thus not subject to the complete jurisdiction of the US) then one does not acquire US citizenship at birth. If the parents are stateless (or one is orphaned) then one could acquire US citizenship. The proof that this is the proper interpretation is found both in practice and via first hand accounts on the drafting of this amendment. In practice, American Indians, who were not subject to the complete jurisdiction of the US but who were nevertheless born in US territory, were not made citizens after this amendment was passed. Indeed it was not until 1924 that the Indian Citizenship Act made them US citizens. If the 14th amendment were interpreted the way it is today then no such law should have been necessary. Clearly there has been a change in interpretation. But don’t take my word for it, let’s hear what the author of the citizenship clause, Senator Jacob M. Howard (MI) had to say on it in 1866: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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.”