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So, What is the Real Deal with Birthright Citizenship?

This debate is inspiring some to even, Gulp!, read the Constitution, instead of just blindly professing respect for it, while really not knowing what it says.

The current debate surrounds the question and status of “anchor babies” [a term found by some to be offensive, but it is really neutrally descriptive], those born in the United States by people rushing across the border, or in from other countries, to have babies on our soil; are they citizens?

The irony of some Republicans, and regrettably Donald Trump, saying the Constitution does not support “birthright citizenship” [Rush Limbaugh, incredibly, said last week that the subject is not even discussed in the 14th Amendment!/?] is that it is the commencing provision of the 14th Amendment, which the Republicans eagerly supported, against opposition of the Democrats, who were not that opposed to slavery nor in favor of outlawing it! Now, the Democrats are supporting the provision, and some of the Republicans are opposed to it.

What has become labeled “birthright citizenship” is expressly announced in the first sentence of the first clause of the 14th Amendment [Rush!], which reads “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….” That constitutionalizes the common law doctrine of jus soli, “law of the soil,” meaning geography of one's birth defines one's citizenship.

There wasn't much disagreement here with the jus soli definition of citizenship until the odious Dred Scott opinion in 1857, which announced that Black slaves were not citizens regardless of their locus of birth. We needn't plumb the depth of that outrageous opinion here – suffice it to say that it uprooted quiet understandings of citizenship, which was finally put to rest after the Civil War with the 14th Amendment. Hm…, we could label the position of some Republicans, and some faux constitutionalists, who urge that the 14th Amendment does not support birthright citizenship as “neo-Dred Scott-ism!”

And there is nothing opaque about it, even though there are some who have agendas which result in their stirring up the bottom sand to make murky what is otherwise clear.

There are two features: “born … in the United States” and “subject to the jurisdiction thereof.”

So, what of “anchor babies”? If a pregnant woman sneaks across the border or flies in from a foreign land and has a baby, what is its status? Well, the baby is obviously born in the United States, so first part of the equation is satisfied. But is he/she subject to the jurisdiction of the United States? Of course he is, and that is proven by one aspect that few realize: if ICE can seize him and his mom and put them into immigration detention, or ship them back across the border, without anyone being able to win an attack on ICE that it has no jurisdiction, then he/she has subjected himself to the jurisdiction of the United States.

Justice Field, in an early opinion [In re Look Tin Sing] announced that the exception to the “jurisdiction clause” was occasioned only by children of foreign diplomats being born here, and the birthright citizenship phenomenon would supersede Congress's power under Article 1, section 8, regarding naturalization. The exception is actually a little broader, but it won't help the xenophobes regarding anchor babies.

Later, thoughts about the jurisdiction clause invited many understandings about the fiction of extra-territoriality, which includes not only children of diplomats, but also children of people invading the United States, children of tribal Indians [at the time tribes were considered foreign sovereignties, which is why we had “treaties” with them and not regular legislation], and some tried to apply it to Chinese laborers who were here temporarily, but intended to return to China and had an allegiance to China and its emperor. That latter sound familiar? It is interesting that the big constitutional debates about citizenship are triggered by rank, rabid racism.

In 1898, 117 years ago[!], the subject was put to rest, in In re Wong Kim Ark, wherein the U.S. Supreme Court noted that a person born here who might have an allegiance to another country is still a citizen of the United States if he is under its jurisdiction, because the United States alone could consent to deny its jurisdiction within its own territorial limits, and it otherwise has jurisdiction over everyone within its territorial borders, subject to the fiction of extra-territoriality discussed above.

Along the way, there have been discussions of “allegiance” as defining “jurisdiction,” but that is a stretch by xenophobes who have not studied how the two issues arose. There was litigation in what was labeled Calvin's Case in 1608, where the question, simplified for passing note here, was whether Scotland-born Calvin had an “allegiance” to the King of England, James I, or to the King of Scotland, James VI, who were the same person!!!! If only the latter, he could not own property or bring suit in England. So, did he owe allegiance to the “body” of that same king, or to the kings as distinct sovereigns of two lands [which happened to be the same physical person!]? And there was much lawyeristic claptrap about “allegiance” vs “citizenship” there.

Do you really think that has anything to do with our debate? Sadly, Dean [former] John C. Eastman of Chapman Law School, and self-styled constitutional “scholar” Mark Levin [the darling of Hannity, Limbaugh, and the xenophobic, reactionary Right] think so, but just ponder the meaning of the words for a moment. “Allegiance” means you are loyal to another; “jurisdiction” means another has power over you. If “allegiance” and “jurisdiction” are now synonymous, as Eastman, Levin, and derivatively, Hannity, Limbaugh and other non-scholarly jingoists claim, will you now be phrasing the celebrated Flag Pledge as “I pledge jurisdiction to the Flag, of the United States of America….”?  I used to have real respect for Mark Levin, and I have read most of his books, but he is totally off-base here to the point that one must doubt his scholarship in other matters.

When one's racism is so extreme that he must play games with word meanings and pretend the twist of meanings is of constitutional magnitude, we have approached the edge of the abyss. And its depths yawn back at us.

By the way, Calvin won his case, and it set the precedent that became our birthright citizenship doctrine that so many choose to trick the electorate out of understanding – the child of an alien temporarily sojourning within the physical territory of a country becomes a citizen of that country if born there.

I sincerely believe Donald Trump has been duped by Levin and Hannity and their ilk that birthright citizenship is not compelled by the Constitution and that anchor babies, under normal circumstances, have American citizenship.

That does not mean that their families get to come here. That does not necessarily mean they have a right to various benefits, etc., nor does it mean that Congress does not have some wiggle-room in that regard. It does mean that they are, under the Constitution, citizens, and no statute can change that reality, per Marbury v. Madison.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


John Ashman

Posted Aug 28, 2015 at 07:11:31

Many thanks are given!


John Ashman

Posted Aug 28, 2015 at 18:00:47

I’m curous what you think about the fact that Federal immigration law is unconstitutional, even though the Supreme Court obviously rubber stamps it anyway, as it does most law.


Posted Aug 29, 2015 at 14:03:01

It is not clear to me what you mean that the immigration law is unconstitutional but the supreme court keeps saying it is constitutional; after Marbury v. Madison and Cooper v. Aaron, what the supreme court says is constitutional is constitutional. If you say you disagree with the supreme court on that point, that is fine, but your disagreement does not define constitutionality. And I am not certain what you are thinking is unconstitutional.


Dennis Wilkins

Posted Aug 29, 2015 at 18:49:11

I think that your analysis is sound, but I nonetheless disagree with some of it. I will note that this is TRULY a complicated and misunderstood area of the law, in many ways similar to the Second Amendment, where too many on either side say that some issue is “clear.” Nonsense. There is very little clarity in the 14th Amendment, the definition of citizenship befote and aftet the 14th, and a LOT of compromises. Oh, and a war that tore this country apart.

First, Dred Scott was NOT out of the mainstream. It was a HORRIBLE decision, filled with racism, and a very divisive opinion that was certainly not needed at the time. But it ACCURATELY portrayed the racism felt by many at the time. And accurately read the Constitution, which not only DIDN’T prohibit slavery – it instead protected slavery. The WORSE thing for this country, vis a vis the Civil War, wasn’t Dred Scott, it was the cotton gin, which gave slavery a new life, and gave new reasons to KEEP the curious institution known as slavery.

Dred Scott wasn’t an anomaly. It was yet another Supreme Court decision recognizing wealth, property, and the status quo.

And no legislation “solved” slavery. It took a war and the “reconstruction” of the South to do it. Only DURING the Civil War were the 13th, 14th and 15th Amendments proposed. And they were NOT popular anywhere, ESPECIALLY in the North. You see, women didn’t get the right to vote until 1920, and they were pissed that Black men would get it long before they did. And there were ALWAYS property requirements to vote – the rabble couldn’t be trusted with such a franchise. Had And not been assassinated, it’s quite possible the 14th Amendment never would have passed.

And as soon as the Supreme Court got to rule on the 14th, it was gutted of most of its civil rights moorings by the cases aptly named “the Civil Rights Cases.” They limited it to the end of slavery, and little else. Then your precious Justice Field went about using the 14th to help corporations, a process expanded through the gilded age at the end of the 1900s, and continuing through the 20s. It wasn’t until FDR started an economic revolution, and changed the composition of the Supreme Court, that the 14th got some meaning. And the process of selective incorporation gave it meaning.

And when we had a great “test” of birthright citizenship in WW2, when we were confrontedvwith possibly “disloyal” people born here, on US soil? Well, SOME of those folks got deported. Yep. US “citizens” got sent to Japan at the end of the way, in 1946 or so.

So, birthright citizenship? CLEARLY protected by the 14th Amendment, and its plain text. But the opinions by the US Supreme Court clarifying this matter and making it iron clad? Not so clear at all. I suspect that, if a group of terrorists had kids in the US, on US soil, our vaunted judiciary MIGHT just find an exception to the 14th somehow. They did it in the 1940s. They could do it now.


Posted Aug 29, 2015 at 19:10:31

Dred Scott was not out of the mainstream in some ways, but it was the strongest denunciation of the common law jus soli doctrine that had understood citizenship to be defined as locus of birth since before the founding. The 14th was necessary to put that denunciation to rest and reassert jus soli, regardless of the 13th Amendment and the outcome of the Civil War.


Ray Wood

Posted Aug 30, 2015 at 10:51:13

Excellent post, as usual, Cap’n. I would only disagree, or perhaps expand, on a couple of points. First, in my opinion, Mark Levin is not, nor has he ever been, anything worthy of even the barest comparison to the shadow of a constitutional scholar…or even to one who claims expertise from having once read part of the Constitution through his second language. He has always struck me as a carnival barker/Father Coughlin-type who was unfortunately gifted a radio transceiver that he uses to transmit from his basement his results-initiated/factual reality-challenged constitutional interpretations. Shame on Hannity for many things in this lifetime, but chief among his crimes was giving Levin a mic to spew his idiocy through. The other point I would expand on is the Enlightenment-minded frame of mind at the time of the Founding vis-a-vis views on citizenship and its reflection in our own laws. We, of course, have a duel approach of natural-born citizenship: born here geographically, or born of American citizen parents. An either/or situation of bloodline or geography. Bloodline satisfied the more aristocratic-minded who still clung somewhat to evaporating beliefs of the past that natural rights emanated from noble blood, and the more enlightened modern and inclusive view that, as “all men were created equal” and imbued with certain natural rights, all men born within the nation’s territory (with the scant exceptions mentioned) possessed citizenship with all its rights, protections, and responsibilities, regardless of bloodline.


Ray Wood

Posted Aug 30, 2015 at 10:59:53

Although there is scant wording on anything having to do with the subject of immigration within the Constitution, I believe that Art. I, Sec. VIII, cl. IV of the Constitution empowers the Congress to make whatever immigration laws it may.


Posted Aug 30, 2015 at 21:01:53

Yeah, and Art. 1, sec. 2, recognized slaves, but the Civil War amendments changed all that. The fact that something in the founding Constitution provides certain things [congressional plenary power over immigration] does not survive ameliorating/correcting amendment [14th – born here under our jurisdiction = citizen]. It’s Mark Levin and his lackey Sean Hannity who think all power is in Congress on that subject, oblivious to the effect of later, and unalterably clear, amendments.


Posted Aug 30, 2015 at 21:05:34

Levin’s “Men in Black” has scholarly moments, but he is a propagandist and ideologue of the dangerous bent of a Hannity or Limbaugh, to be sure, with academic pretensions, making him even more dangerous, His later books are somewhat repeats of MIB, but I enjoy reading them.



Posted Oct 30, 2018 at 10:21:26

Why no mention of Ted Kennedy’s action which was “the 1965 revamp of the entire immigration system. It ended 40 years of low immigration, got rid of solid numerical caps and opened up chain migration into every overpopulated country in the world, exploding annual immigration numbers.” Isn’t this when the birthright citizenship was opened up under the Kennedy’s to the situation that we have today.


Posted May 23, 2020 at 18:04:40

Birthright citizenship is created and protected by the 14th Amendment; it has nothing to do with any political activity [except for the Trumpian attempts to eviscerate it].


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