Amicus Curiae Brief: Birthright Citizenship

1. Introduction

This brief is submitted as amicus curiae in support of efforts to reconsider the policy of birthright citizenship as established under the Fourteenth Amendment to the United States Constitution. Birthright citizenship, often understood as the automatic granting of citizenship to any individual born within U.S. borders regardless of their parents’ immigration status, has far-reaching implications for national security, immigration policy, and social welfare systems.

The concept of birthright citizenship is rooted in the interpretation of the Citizenship Clause of the Fourteenth Amendment, adopted in 1868. This clause was primarily intended to address the citizenship status of formerly enslaved individuals after the Civil War. However, its modern application has extended far beyond its original scope, giving rise to significant legal and practical challenges. These include the incentivization of illegal immigration, the rise of birth tourism, and the strain on public resources.

The purpose of this brief is to examine the historical, legal, and policy considerations surrounding birthright citizenship and to argue that its current application should be reconsidered. To support this argument, we analyze key case law, including United States v. Wong Kim Ark (1898), Plyler v. Doe (1982), Elk v. Wilkins (1884), Arizona v. United States (2012), Hamdi v. Rumsfeld (2004), and Dred Scott v. Sandford (1857), providing a detailed exploration of the issues, rules, analyses, and conclusions of each case.

1. DEFINITIONS

Here are the definitions of key clauses and concepts related to the 14th Amendment, along with notable case law citations for each:

1. Citizenship Clause

• Definition: The Citizenship Clause, part of Section 1 of the 14th Amendment, establishes that all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the state where they reside.
• Significance: It overruled the Supreme Court’s decision in Dred Scott v. Sandford (1857), which held that African Americans could not be U.S. citizens.
• Key Case:
  • United States v. Wong Kim Ark (1898): The Court held that a child born in the United States to Chinese parents was a U.S. citizen under the Citizenship Clause, affirming the principle of birthright citizenship.

2. Due Process Clause

• Definition: The Due Process Clause of the 14th Amendment ensures that no state shall deprive any person of life, liberty, or property without due process of law. It protects both procedural and substantive rights.
  • Procedural Due Process: Requires fair legal procedures (e.g., notice, hearing) before depriving someone of life, liberty, or property.
  • Substantive Due Process: Protects fundamental rights from government interference, even if procedures are followed.
• Key Cases:
  • Mapp v. Ohio (1961): Incorporated the Fourth Amendment’s protection against unlawful searches and seizures to the states through the Due Process Clause.
  • Roe v. Wade (1973): The Court held that the right to privacy, protected under substantive due process, includes a woman’s right to choose to have an abortion.

3. Equal Protection Clause

• Definition: The Equal Protection Clause prohibits states from denying any person within their jurisdiction equal protection of the laws. It ensures that individuals in similar circumstances are treated equally by the law.
• Key Cases:
  • Brown v. Board of Education (1954): The Court held that racial segregation in public schools violated the Equal Protection Clause.
  • Loving v. Virginia (1967): Struck down laws banning interracial marriage as a violation of equal protection.

4. State Action Doctrine

• Definition: The 14th Amendment applies only to actions taken by state or government entities, not private individuals or organizations, unless there is significant state involvement in the private action.
• Key Cases:
  • Civil Rights Cases (1883): The Court ruled that the 14th Amendment does not apply to private discrimination, only to state action.
  • Shelley v. Kraemer (1948): The Court held that judicial enforcement of racially restrictive covenants constituted state action and violated the Equal Protection Clause.

5. Strict Scrutiny

• Definition: The highest standard of judicial review used to evaluate laws or policies that classify individuals based on suspect classifications (e.g., race, religion) or infringe on fundamental rights. The law must:
  • Serve a compelling governmental interest.
  • Be narrowly tailored to achieve that interest.
  • Use the least restrictive means.
• Key Cases:
  • Korematsu v. United States (1944): The Court applied strict scrutiny to uphold Japanese-American internment during World War II but is now widely criticized.
  • Fisher v. University of Texas (2016): Affirmed the use of strict scrutiny in evaluating affirmative action policies.

6. Intermediate Scrutiny

• Definition: A standard of judicial review used for laws that involve quasi-suspect classifications, such as gender or legitimacy of birth. The law must:
  • Serve an important governmental objective.
  • Be substantially related to achieving that objective.
• Key Cases:
  • Craig v. Boren (1976): The Court established intermediate scrutiny for gender-based classifications.
  • United States v. Virginia (1996): Held that the Virginia Military Institute’s male-only admissions policy violated the Equal Protection Clause under intermediate scrutiny.

7. Rational Basis Review

• Definition: The lowest level of judicial scrutiny applied to laws that do not involve suspect or quasi-suspect classifications. The law must:
  • Be rationally related to a legitimate governmental interest.
• Key Cases:
  • Williamson v. Lee Optical Co. (1955): Upheld a law regulating the sale of eyeglasses, applying rational basis review.
  • Railway Express Agency v. New York (1949): Sustained a traffic regulation favoring certain advertising methods as rationally related to public safety.

Summary Table

Clause/Concept	Standard/Principle	Key Case(s)
Citizenship Clause	Birthright citizenship	United States v. Wong Kim Ark (1898)
Due Process Clause	Procedural & Substantive Rights	Roe v. Wade (1973)
Equal Protection Clause	Equal treatment under the law	Brown v. Board of Education (1954)
State Action Doctrine	Public vs. Private Actions	Shelley v. Kraemer (1948)
Strict Scrutiny	Compelling Interest; Narrow Tailoring	Fisher v. University of Texas (2016)
Intermediate Scrutiny	Important Objective; Substantial Relation	Craig v. Boren (1976)
Rational Basis Review	Legitimate Interest; Rational Relation	Williamson v. Lee Optical Co. (1955)

Each of these clauses and standards has played a critical role in shaping constitutional law under the 14th Amendment, influencing landmark decisions that continue to impact society today.

• KEY QUESTIONS ASKED AND ANSWERED BY THIS BRIEF
• Are non-citizens entitled to the same rights and protections as citizens under the 14th Amendment?
  • How are the rights of citizens and non-citizens distinguished under the Constitution?
• If an individual is not an official citizen of the United States, are they granted the protections and privileges enumerated under the 14th Amendment?
  • Does the phrase “subject to the jurisdiction thereof” in the Citizenship Clause include non-citizens, such as undocumented immigrants, foreign nationals, or visitors?
• What are the constitutional criteria for defining a “citizen” under the 14th Amendment?
  • How does U.S. law determine citizenship at birth versus naturalization?
  • Are there limitations on automatic citizenship based on place of birth?
• Does the Reapportionment Clause in the 14th Amendment include non-citizens in population counts for the purposes of congressional representation?
  • Should non-citizens be included in the census for purposes of apportionment or excluded entirely?
• What was the original intent of the framers of the 14th Amendment concerning birthright citizenship?
  • Did the framers intend for the Citizenship Clause to extend to children of foreign nationals, transient visitors, or individuals residing in the United States illegally?
• What role does allegiance to the United States play in determining citizenship under the 14th Amendment?
  • Can someone who is subject to the laws of another country (e.g., through dual citizenship or allegiance) claim automatic citizenship at birth in the United States?
• How does the interpretation of “jurisdiction” in the Citizenship Clause affect the scope of birthright citizenship?
  • Does “subject to the jurisdiction thereof” imply complete and exclusive allegiance to the United States?
  • How has case law, such as United States v. Wong Kim Ark, influenced this interpretation?
• What are the practical and constitutional implications of granting or denying birthright citizenship to children of non-citizens?
  • How would denying birthright citizenship affect immigration, societal integration, and the legal rights of future generations?
• How do other countries approach citizenship for children born within their borders, and should the U.S. align with these practices?
  • Are there lessons to be learned from nations that restrict birthright citizenship to children of citizens or permanent residents?
• Does birthright citizenship for children of non-citizens encourage unlawful entry into the United States?
  • Does the current interpretation of the 14th Amendment incentivize “birth tourism” or illegal immigration?
• Is birthright citizenship consistent with modern interpretations of national sovereignty and immigration control?
  • Should Congress or the judiciary play a more prominent role in redefining or interpreting the scope of citizenship under the 14th Amendment?
• Does denying birthright citizenship to children of non-citizens violate any other constitutional provisions or principles?
  • Are there equal protection concerns or due process issues that arise from restricting birthright citizenship?

1. Key Constitutional Questions Under the 14^th Amendment

The constitutionality of a law challenged under the 14th Amendment is determined by analyzing specific constitutional questions and elements, with the standard varying depending on the nature of the law, the rights involved, and the level of scrutiny applied. Here’s a breakdown:

Key Constitutional Questions Under the 14th Amendment

1. Does the law violate the Equal Protection Clause?
   • The Equal Protection Clause prohibits states from denying any person “equal protection of the laws.” A court will assess whether the law treats individuals or groups differently based on classifications such as race, gender, or other protected characteristics.
2. Does the law infringe on the Due Process Clause?
   • The Due Process Clause ensures that no person is deprived of life, liberty, or property without appropriate legal procedures. Courts examine whether the law interferes with fundamental rights (e.g., voting, marriage, privacy) and whether the government has followed fair procedures.
3. Does the law affect privileges or immunities of citizenship?
   • While the Privileges or Immunities Clause has been narrowly interpreted since The Slaughterhouse Cases (1873), it occasionally arises in cases involving the fundamental rights of U.S. citizens.

Standards of Review: Levels of Scrutiny

Courts use three levels of scrutiny to determine the constitutionality of a law under the 14th Amendment:

1. Strict Scrutiny (Highest Standard)
   • Applied to laws involving suspect classifications (e.g., race, religion, national origin) or fundamental rights (e.g., free speech, marriage, voting).
   • The government must show:
     • A compelling state interest.
     • The law is narrowly tailored to achieve that interest.
     • There are no less restrictive alternatives.
   • Example: Brown v. Board of Education (1954), which struck down racial segregation in schools.
2. Intermediate Scrutiny
   • Applied to laws involving quasi-suspect classifications like gender or legitimacy of birth.
   • The government must show:
     • An important governmental objective.
     • The law is substantially related to achieving that objective.
   • Example: United States v. Virginia (1996), which invalidated gender discrimination at the Virginia Military Institute.
3. Rational Basis Review (Lowest Standard)
   • Applied to most other laws, including those regulating economic matters or social policies.
   • The government must show:
     • The law is rationally related to a legitimate government interest.
   • Example: Railway Express Agency v. New York (1949), which upheld a traffic regulation favoring certain types of advertising.

Challenging a Law Enacted by the President

If a law or executive order issued by the president is challenged under the 14th Amendment, the process and constitutional questions remain the same, but additional factors may come into play:

1. Authority of the President: Courts will first determine whether the president had the constitutional or statutory authority to enact the law or order. For example, in Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court struck down President Truman’s executive order to seize steel mills, citing lack of authority.
2. Checks and Balances: Presidential laws or orders may face heightened scrutiny to ensure they do not infringe on the separation of powers or overstep executive authority.
3. Deference to National Security or Emergency Powers: Courts may defer to the president’s judgment if the law or order involves national security or emergency powers, provided the action is narrowly tailored and necessary.
4. Application of 14th Amendment Principles: If a presidential law or order discriminates or denies equal protection or due process, courts will apply the same 14th Amendment standards of scrutiny.
   • Example: The challenge to President Trump’s travel ban in Trump v. Hawaii (2018). The Court upheld the ban, finding it within the president’s statutory authority, but the case raised 14th Amendment equal protection concerns due to its potential discriminatory impact.

Does It Change If It’s the President’s Law?

• No change in the constitutional questions: The same 14th Amendment principles (equal protection, due process, privileges or immunities) and levels of scrutiny apply to laws or orders issued by the president or Congress.
• Additional considerations: Courts may evaluate the law’s separation of powers implications, statutory authority, and the president’s justification for acting without or beyond congressional approval.

Conclusion

Whether challenging a state law, a federal law, or a presidential action, courts focus on the Equal Protection and Due Process Clauses of the 14th Amendment and apply varying levels of scrutiny based on the rights and classifications involved. While the president’s involvement does not change the constitutional framework, it may introduce additional considerations regarding executive authority and the separation of powers.

 

V)        The History of the 14th Amendment: From Creation to Present Day

Creation of the 14th Amendment

The 14th Amendment to the United States Constitution was born out of the ashes of the Civil War, during a time when the nation was grappling with the question of how to integrate millions of newly freed African Americans into a society that had long denied them basic rights. Its creation was spearheaded by the Republican-controlled 39th Congress as part of the broader Reconstruction effort to rebuild the Union and redefine citizenship and civil rights.

 

Drafting and Debate

The amendment was introduced in 1866, primarily authored by Representative John Bingham of Ohio, who believed in the fundamental equality of all citizens. It was designed to address several critical issues:

1. Establishing birthright citizenship.
2. Guaranteeing due process and equal protection under the law.
3. Disqualifying former Confederate officials from holding public office.
4. Addressing the apportionment of representatives by counting all persons equally.
5. Prohibiting the payment of debts incurred by the Confederacy.

Debates over the amendment were fierce, with opponents decrying it as an overreach of federal power. President Andrew Johnson vehemently opposed it, arguing that it violated states’ rights. In contrast, proponents like Thaddeus Stevens championed it as a moral and legal necessity. Stevens declared, “It is but simple justice, not only to the people of this country but to the whole human race.”

 

Congressional Passage and Ratification

The amendment passed Congress on June 13, 1866, with the following votes:

• Senate: 33-11
• House of Representatives: 120-32

After clearing Congress, the amendment was sent to the states for ratification. It faced significant resistance from Southern states, many of which were under federal military control. The Reconstruction Acts of 1867 made ratification a prerequisite for readmission to the Union. By July 9, 1868, the necessary three-fourths of states had ratified it, and it was formally adopted.

 

Provisions of the 14th Amendment (for complete language, see the next section) 

The 14th Amendment comprises five sections, with the first being the most significant:

1. Section 1: Defines citizenship, ensures due process, and guarantees equal protection under the law. This is the clause under consideration and review
2. Section 2: Addresses apportionment of representatives. This clause deals with who ‘counts as official’
3. Section 3: Bars former Confederates from holding office. (Elected Officials)
4. Section 4: Declares Confederate debts void. (Paying off the South’s debts)
5. Section 5: Grants Congress the power to enforce the amendment. (Congress can amend)

 

Impact and Interpretation

Early Challenges and Limitations

In its early years, the 14th Amendment was often undermined by judicial interpretation. The Supreme Court’s decision in The Slaughterhouse Cases (1873) significantly narrowed the scope of the “privileges or immunities” clause, limiting its protection to federal, not state, citizenship. This decision, along with others like Plessy v. Ferguson (1896), which upheld racial segregation under “separate but equal,” restricted the amendment’s promise of equality.

 

Civil Rights Era and Expanded Protections

The mid-20th century saw a revival of the 14th Amendment as a cornerstone of civil rights. Landmark Supreme Court cases expanded its interpretation:

• Brown v. Board of Education (1954): Declared racial segregation in public schools unconstitutional, stating, “Separate educational facilities are inherently unequal.”
• Loving v. Virginia (1967): Struck down laws banning interracial marriage.
• Roe v. Wade (1973): Cited the due process clause to establish a right to privacy, including a woman’s right to choose abortion.
• Obergefell v. Hodges (2015): Guaranteed same-sex couples the right to marry under the equal protection clause.

 

Ongoing Ramifications

The 14th Amendment continues to play a pivotal role in legal and political debates. Issues such as affirmative action, immigration, and voting rights frequently invoke its equal protection and due process clauses. The amendment’s language has proven both timeless and adaptable, serving as a foundation for the expansion of civil rights over more than 150 years.

 

Memorable Quotes

• Thaddeus Stevens: “Equality before the law must be achieved, not as a privilege, but as a right.”
• Chief Justice Earl Warren (Brown v. Board of Education): “In the field of public education, the doctrine of ‘separate but equal’ has no place.”
• Justice Anthony Kennedy (Obergefell v. Hodges): “The right to marry is a fundamental right inherent in the liberty of the person.”

 

Conclusion

The 14th Amendment’s journey from creation to the present reflects the evolving struggle for equality in America. While its promises were not fully realized at its inception, the amendment has become a living testament to the nation’s capacity for change. As society continues to confront issues of inequality and injustice, the 14th Amendment remains a vital beacon for those seeking liberty and justice for all.

 

1. The 14^th Amendment To the US Constitution

Section 1.
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

 

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

 

Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

 

The 14th Amendment was ratified on July 9, 1868. It was a landmark piece of legislation that extended the Bill of Rights to the states

 

• The Five Sections of the Fourteenth Amendment

Section 1: Citizenship, Privileges or Immunities, Due Process, and Equal Protection

Definition: Section 1 establishes birthright citizenship, guarantees privileges or immunities, ensures due process, and mandates equal protection under the law. It reads:

“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.”

 

Relevant Cases:

1. United States v. Wong Kim Ark, 169 U.S. 649 (1898)
   • Issue: Does the Citizenship Clause grant birthright citizenship to the children of foreign nationals?
   • Rule: The Court held that a child born in the U.S. to foreign parents who are lawfully domiciled is a U.S. citizen under the Fourteenth Amendment.
   • Analysis: The majority emphasized the principle of jus soli (right of the soil) derived from English common law. However, dissenters argued that citizenship should not automatically extend to individuals whose allegiance may lie with foreign nations.
   • Conclusion: The case affirmed birthright citizenship but left questions regarding the “subject to the jurisdiction thereof” clause unanswered, especially in contexts involving undocumented immigrants.
2. Elk v. Wilkins, 112 U.S. 94 (1884)
   • Issue: Does the Citizenship Clause apply to Native Americans born within U.S. territory?
   • Rule: The Court ruled that Native Americans who maintain tribal affiliation are not “subject to the jurisdiction” of the U.S. and therefore not citizens at birth.
   • Analysis: The decision emphasized political allegiance as a criterion for citizenship under the Fourteenth Amendment.
   • Conclusion: Elk v. Wilkins demonstrates the limitations of birthright citizenship, highlighting the need for clearer definitions of jurisdiction and allegiance.
3. Plyler v. Doe, 457 U.S. 202 (1982)
   • Issue: Do states have the authority to deny public education funding to undocumented immigrant children?
   • Rule: The Court held that denying education based on immigration status violates the Equal Protection Clause of the Fourteenth Amendment.
   • Analysis: While the ruling focused on equal protection, it indirectly affirmed the presence and rights of undocumented immigrants and their children in the U.S.
   • Conclusion: The case underscores the tension between equal protection and concerns over immigration policy, suggesting the need for legislative clarification.

 

Section 2: Apportionment of Representatives

Definition: Section 2 addresses the apportionment of representatives based on population and penalizes states that deny voting rights.

Relevant Case:

1. Richardson v. Ramirez, 418 U.S. 24 (1974)
   • Issue: Does Section 2 allow states to disenfranchise felons?
   • Rule: The Court upheld California’s felon disenfranchisement law, interpreting Section 2 as permitting such restrictions.
   • Analysis: The decision reveals the flexibility of Section 2 in accommodating state-level voting regulations, suggesting that apportionment provisions could similarly allow for restrictions or changes.
   • Conclusion: This case illustrates the need to modernize the apportionment framework to align with contemporary democratic values.

 

Section 3: Disqualification from Office

Definition: Section 3 prohibits individuals who have engaged in insurrection or rebellion against the U.S. from holding office.

Relevant Case:

1. Griffin’s Case, 11 F. Cas. 7 (1869)
   • Issue: Does Section 3 apply to state-level officials who supported the Confederacy?
   • Rule: The court applied Section 3 to disqualify individuals who actively engaged in rebellion, affirming the amendment’s punitive intent.
   • Analysis: The case underscores the amendment’s historical context but raises questions about its relevance in contemporary politics.
   • Conclusion: The enforcement of Section 3 should consider its applicability to modern forms of insurrection and anti-democratic behavior.

 

Section 4: Public Debt

Definition: Section 4 guarantees the validity of U.S. public debt while rejecting Confederate debts.

Relevant Case:

1. Perry v. United States, 294 U.S. 330 (1935)
   • Issue: Does Section 4 prohibit the federal government from repudiating public debt?
   • Rule: The Court held that Section 4 ensures the inviolability of public debt.
   • Analysis: The ruling reinforced the fiscal stability of the U.S., but its narrow focus leaves questions about broader applications.
   • Conclusion: Modern financial crises may necessitate a reevaluation of Section 4’s scope.

 

Section 5: Enforcement Power

Definition: Section 5 grants Congress the authority to enforce the provisions of the Fourteenth Amendment.

Relevant Case:

1. City of Boerne v. Flores, 521 U.S. 507 (1997)
   • Issue: Does Section 5 empower Congress to enforce civil rights protections beyond judicial interpretations?
   • Rule: The Court limited Congress’ enforcement powers, emphasizing judicial supremacy in constitutional interpretation.
   • Analysis: The decision reflects tension between legislative and judicial authority, with implications for Fourteenth Amendment enforcement.
   • Conclusion: Clarifying the scope of Section 5 is essential to ensuring balanced governance.

• Proposed Judicial Approach

To address ambiguities and modern challenges, the courts should adopt a textualist and originalist approach to the Fourteenth Amendment. This entails:

1. Defining “subject to the jurisdiction thereof” to exclude individuals with temporary or unlawful status.
2. Affirming the historical intent of Section 1 to prevent unintended consequences of unrestricted birthright citizenship.
3. Encouraging Congress to legislate precise definitions and limitations within the framework of Sections 4 and 5.

By doing so, the judiciary can provide clarity and consistency, fostering a balanced application of the Fourteenth Amendment that aligns with constitutional principles and contemporary realities.

 

1. Case Law and Historical Context
2. United States v. Wong Kim Ark, 169 U.S. 649 (1898)
   • Note: For commentary on this case, please see Section —- above.
3. Plyler v. Doe, 457 U.S. 202 (1982)
   • Note: For commentary on this case, please see Section —- above.
4. Elk v. Wilkins, 112 U.S. 94 (1884)
   • Issue: Whether a Native American born on tribal land is a U.S. citizen under the Fourteenth Amendment.
   • Rule: Individuals born on tribal lands are not automatically “subject to the jurisdiction” of the United States and, therefore, do not acquire citizenship under the Fourteenth Amendment unless they sever tribal allegiances and gain full jurisdictional allegiance to the U.S.
   • Analysis: The Court’s decision emphasized that “subject to the jurisdiction” required full political allegiance to the United States. The decision highlighted the limits of the Fourteenth Amendment’s application, setting a precedent for a narrower interpretation of jurisdiction in certain contexts.
   • Conclusion: The Court ruled against Elk, denying him citizenship and reinforcing the principle that jurisdiction implies full political allegiance.
5. Arizona v. United States, 567 U.S. 387 (2012)
   • Issue: Whether provisions of Arizona’s immigration law that imposed state-level penalties on undocumented immigrants were preempted by federal law.
   • Rule: Federal law preempts state laws in areas where the federal government has sole authority, such as immigration policy.
   • Analysis: The Court invalidated key provisions of Arizona’s law, emphasizing the federal government’s exclusive authority over immigration. This case underscores the complexities of state and federal roles in immigration regulation, which are directly impacted by birthright citizenship.
   • Conclusion: The Court struck down most of Arizona’s law, reaffirming the federal government’s primary role in immigration control.
6. Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
   • Issue: Whether a U.S. citizen detained as an enemy combatant has the right to challenge their detention under the Due Process Clause.
   • Rule: U.S. citizens are entitled to due process protections, even when designated as enemy combatants.
   • Analysis: The Court’s decision reinforced the principle that citizenship confers significant legal rights and responsibilities. It also highlighted the potential consequences of broad interpretations of citizenship, particularly in matters of national security.
   • Conclusion: The Court ruled that Hamdi was entitled to challenge his detention, reaffirming the constitutional rights of U.S. citizens.
7. Dred Scott v. Sandford, 60 U.S. 393 (1857)
   • Issue: Whether an enslaved individual and their descendants could be considered U.S. citizens under the Constitution.
   • Rule: African Americans, whether free or enslaved, could not be considered citizens of the United States and were not entitled to constitutional protections.
   • Analysis: Although later overturned by the Fourteenth Amendment, the Dred Scott decision provides historical context for the evolving definition of citizenship. The case highlights the judiciary’s role in shaping citizenship policy and the potential for restrictive interpretations.
   • Conclusion: The Court ruled against Dred Scott, denying him citizenship and underscoring the historical limitations of constitutional protections.

Rule

The constitutional rule underpinning birthright citizenship is the Fourteenth Amendment. However, the phrase “subject to the jurisdiction thereof” has been interpreted inconsistently over time, leaving room for legal reevaluation. Critics argue that Congress has the authority to clarify or limit the scope of this provision under Article I, Section 8 of the Constitution, which grants it plenary power over immigration and naturalization.

 

Analysis

1. Economic Burden:
   • A 2020 study by the Center for Immigration Studies estimated that 372,000 children are born annually to undocumented immigrants in the U.S., representing approximately 7.5% of all births. These “anchor babies” often result in their families gaining access to public benefits, including healthcare, education, and welfare, creating significant financial strain on taxpayers.
   • The National Academy of Sciences found that first-generation immigrants, including their U.S.-born children, cost more in public services than they contribute in taxes, with a net fiscal burden of approximately $57.4 billion annually.
2. National Security Implications:
   • Critics argue that birthright citizenship incentivizes “birth tourism,” where foreign nationals travel to the U.S. with the explicit purpose of giving birth to a child who will gain automatic citizenship. This practice creates opportunities for abuse and complicates enforcement of immigration laws.
3. Legal Ambiguity:
   • The Wong Kim Ark decision relied on common-law principles derived from English jurisprudence, which may not align with the modern realities of immigration. Many countries, including most of Europe, have abolished birthright citizenship, instead requiring at least one parent to be a citizen or legal resident.
   • Statutory interpretation of “jurisdiction” remains debatable. Legal scholars argue that the drafters of the Fourteenth Amendment intended this clause to exclude individuals with no political allegiance to the U.S., such as foreign diplomats or undocumented immigrants.
4. Comparative Practices:
   • The U.S. is one of the few developed nations to retain unrestricted birthright citizenship. Canada is the only other G7 nation with a similar policy. Most countries, including Germany, the United Kingdom, and Australia, have adopted systems requiring at least one parent to hold citizenship or legal residency.

 

X)        Key Questions Analysis

1. Are non-citizens entitled to the same rights and protections as citizens under the 14th Amendment?

• Rule: While the Equal Protection and Due Process Clauses of the 14th Amendment apply to “persons” and not exclusively to “citizens,” courts have ruled that certain rights (e.g., voting and holding office) are reserved for citizens (Yick Wo v. Hopkins, 1886).
• Analysis: Distinctions exist between fundamental rights guaranteed to all persons (e.g., due process) and political rights exclusive to citizens. The framers did not equate non-citizens with citizens in all respects but ensured that basic human rights applied universally.
• Conclusion Reflection: This distinction underscores the need to interpret the Citizenship Clause narrowly, ensuring it reflects allegiance and legal presence.

2. If an individual is not an official citizen, are they granted protections and privileges under the 14th Amendment?

• Rule: Protections like due process apply broadly; however, privileges tied to citizenship, such as birthright citizenship, hinge on the “subject to the jurisdiction thereof” language.
• Analysis: The term “jurisdiction” implies more than physical presence—it involves allegiance and adherence to U.S. laws, as clarified in United States v. Wong Kim Ark (1898). This excludes diplomats and enemy combatants, but ambiguity remains regarding undocumented immigrants and visitors.
• Conclusion Reflection: Clarifying “jurisdiction” to exclude individuals without legal presence aligns with the framers’ intent and reduces exploitation of citizenship laws.

3. What are the constitutional criteria for defining a “citizen” under the 14th Amendment?

• Rule: Citizenship is determined by birthright (jus soli) or naturalization. However, jus soli depends on being born under U.S. jurisdiction.
• Analysis: Courts have recognized automatic citizenship for children born to non-citizens lawfully residing in the U.S. but have not fully addressed cases involving unlawful presence. Revisiting this gap is essential to resolving contemporary disputes.
• Conclusion Reflection: A more precise legal framework defining citizenship would reduce ambiguity and reinforce national sovereignty.

4. Does the Reapportionment Clause in the 14th Amendment include non-citizens in population counts for congressional representation?

• Rule: Historically, non-citizens are included in the census for apportionment purposes (Evenwel v. Abbott, 2016).
• Analysis: Including non-citizens in apportionment dilutes representation for citizens and raises concerns about fairness. The framers likely did not anticipate the significant non-citizen population seen today.
• Conclusion Reflection: Excluding non-citizens from reapportionment aligns with the principle of representation by and for citizens.

5. What was the original intent of the framers of the 14th Amendment concerning birthright citizenship?

• Rule: The Citizenship Clause was intended to secure citizenship for freed slaves and their descendants, not for children of foreign nationals (Slaughter-House Cases, 1873).
• Analysis: The framers emphasized allegiance and did not anticipate modern issues like undocumented immigration or birth tourism. Narrowing the scope of birthright citizenship restores the original purpose of the clause.
• Conclusion Reflection: Aligning the clause with its historical intent addresses modern challenges without undermining constitutional principles.

6. What role does allegiance play in determining citizenship under the 14th Amendment?

• Rule: Allegiance is a core element of jurisdiction, as seen in the exclusion of diplomats’ children from birthright citizenship (Elk v. Wilkins, 1884).
• Analysis: Birthright citizenship without allegiance undermines the connection between citizenship and loyalty, fostering divided loyalties and exploitation of U.S. laws.
• Conclusion Reflection: Requiring allegiance ensures that citizenship is not merely a byproduct of geography but a meaningful legal and social relationship.

7. How does the interpretation of “jurisdiction” affect the scope of birthright citizenship?

• Rule: Jurisdiction is interpreted as full allegiance to the U.S., excluding groups like diplomats and hostile forces (Wong Kim Ark).
• Analysis: Expanding jurisdiction to include unlawful or transient presence stretches the 14th Amendment beyond its original purpose and creates unintended consequences.
• Conclusion Reflection: Narrowing jurisdiction strengthens the integrity of citizenship and aligns it with constitutional principles.

8. What are the practical and constitutional implications of granting or denying birthright citizenship to children of non-citizens?

• Analysis: Granting citizenship incentivizes unauthorized immigration and strains public resources. Denying it fosters accountability and aligns citizenship with national interests.
• Conclusion Reflection: Addressing this issue is critical to balancing fairness, immigration control, and societal integration.

9. How do other countries approach citizenship, and should the U.S. align with these practices?

• Analysis: Many nations limit jus soli to children of citizens or permanent residents, emphasizing allegiance. Aligning with these practices could modernize U.S. citizenship laws.
• Conclusion Reflection: The U.S. should consider global trends while respecting its unique constitutional framework.

10. Does birthright citizenship encourage unlawful entry into the United States?

• Analysis: The prospect of citizenship for children incentivizes illegal immigration and birth tourism. Restricting birthright citizenship would reduce these practices.
• Conclusion Reflection: Addressing this issue discourages exploitation and promotes legal immigration pathways.

11. Is birthright citizenship consistent with modern interpretations of national sovereignty?

• Analysis: Sovereignty includes the right to define membership. Broad interpretations of birthright citizenship undermine this principle.
• Conclusion Reflection: Modernizing citizenship laws reinforces sovereignty and aligns with national interests.

 

XI)      Proposed Judicial Approach

To address the ambiguities and modern challenges posed by the Fourteenth Amendment’s birthright citizenship clause, courts should consider a multifaceted judicial approach. This approach would involve reevaluating the historical context, applying stricter interpretative standards, and exploring legal frameworks that balance individual rights with national sovereignty.

1. Reexamine Historical Context The courts should emphasize that the original intent of the birthright citizenship clause was to address the specific historical circumstances of former slaves and their descendants. This interpretation aligns with the framers’ intent to rectify the injustices of slavery and ensure citizenship for those who were previously denied it. Judicial decisions should make clear that the clause was not designed to accommodate individuals born to non-citizen parents temporarily present in the United States. Historical evidence, including legislative debates and contemporaneous writings, should be used as foundational support for this interpretation.
2. Adopt a Jurisdictional Standard The judiciary should adopt a more stringent interpretation of the “subject to the jurisdiction thereof” language in the amendment. This would mean recognizing that being “subject to the jurisdiction” entails not merely physical presence but also full allegiance to the United States, excluding individuals who are in the country on a temporary basis or who maintain allegiance to a foreign power. This stricter standard would align with the framers’ intent and ensure that citizenship is not granted indiscriminately.
3. Encourage Legislative Clarification Courts should urge Congress to enact legislation that provides clear guidelines on the parameters of birthright citizenship. By doing so, ambiguities in judicial interpretation can be minimized, and a consistent standard can be applied across all jurisdictions. Legislation could define “jurisdiction” in a way that reflects modern realities, such as explicitly excluding children of foreign diplomats, tourists, and individuals without lawful status from automatic citizenship.
4. Implement Case-by-Case Review Courts could adopt a case-by-case approach to assess birthright citizenship claims. This would allow the judiciary to consider the specific circumstances of each case, including the parents’ legal status, the duration and nature of their presence in the U.S., and their demonstrated allegiance to the country. While more resource-intensive, this approach ensures fairness and prevents blanket interpretations that might lead to unintended consequences.
5. Strengthen Enforcement Mechanisms To implement these judicial decisions effectively, coordination with federal agencies such as U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) is essential. Clear policies and procedures should be established to ensure that citizenship determinations are consistent with judicial rulings. For example, birth certificate documentation processes could include verification of parents’ legal status and jurisdictional criteria.
6. Promote Public Awareness Courts should work in tandem with public institutions to educate the populace about the rationale behind these changes. Public awareness campaigns could help mitigate misconceptions and foster a deeper understanding of the importance of aligning citizenship policies with constitutional intent. Transparent communication would also reduce potential backlash and increase public trust in the judiciary.

 

XII)    Why This Approach Is Beneficial

This judicial approach promotes a balanced interpretation of the Fourteenth Amendment that respects historical intent while addressing contemporary challenges. It ensures that citizenship is conferred in a manner consistent with the principles of national sovereignty and legal accountability. By clarifying ambiguities, this approach reduces the potential for exploitation of the birthright citizenship clause and aligns U.S. citizenship policy with international norms.

Furthermore, this approach prevents the indiscriminate granting of citizenship, which can strain public resources and create social tensions. It underscores the importance of allegiance and lawful presence as prerequisites for citizenship, thereby reinforcing the integrity of the nation’s legal framework.

 

XIII) Implementation Steps

1. Judicial Training: Provide specialized training for judges on the historical and legal nuances of the Fourteenth Amendment to ensure informed and consistent rulings.
2. Policy Development: Collaborate with federal agencies to develop and implement policies that reflect the new judicial standards.
3. Legislative Action: Encourage Congress to pass laws that codify the revised interpretation of the jurisdictional clause.
4. Public Engagement: Launch educational initiatives to inform the public about the changes and their underlying rationale.
5. Monitoring and Evaluation: Establish mechanisms to monitor the impact of these changes and adjust policies as needed to achieve the desired outcomes.

 

• Conclusion

The Fourteenth Amendment represents a complex amalgamation of ideas, addressing citizenship, representation, insurrection, public debt, and enforcement power. Among these, the birthright citizenship clause has been a cornerstone of American constitutional law, symbolizing equality and inclusion. However, the modern interpretation of this clause raises several pressing questions about its scope, intent, and application.

At its core, the clause declares that individuals born in the United States and “subject to the jurisdiction thereof” are citizens. This leads to critical inquiries about whether non-citizens, including undocumented immigrants and foreign nationals, are entitled to the same rights and protections under the Fourteenth Amendment as citizens. While the Amendment guarantees equal protection under the law, the distinction between citizens and non-citizens, particularly regarding allegiance and jurisdiction, remains a point of contention.

The framers of the Fourteenth Amendment, addressing the unique historical context of emancipated slaves, intended for citizenship to extend to those who owed complete allegiance to the United States. They likely did not foresee the complexities of modern immigration, including the practice of birth tourism, unauthorized entry, and dual allegiances. This raises questions about whether the phrase “subject to the jurisdiction thereof” should be narrowly interpreted to exclude transient visitors, individuals residing unlawfully, and those with competing national allegiances.

Furthermore, the Citizenship Clause invites scrutiny of its practical implications. Would denying birthright citizenship to children of non-citizens address concerns about unlawful entry, societal integration, and resource allocation, or would it create a stateless generation and exacerbate social inequities? Equal protection and due process considerations must also be weighed, as any restriction on birthright citizenship could potentially violate these principles.

International comparisons further illuminate these debates. Many countries limit birthright citizenship to children of citizens or permanent residents, emphasizing national sovereignty and immigration control. Should the United States adopt a similar approach, or does its constitutional framework require adherence to a broader interpretation of citizenship?

The Reapportionment Clause of the Fourteenth Amendment adds another dimension to these debates. The inclusion of non-citizens in population counts for congressional representation raises constitutional and practical questions about representation, resource allocation, and the balance of power between states.

The judiciary must consider these issues in light of the framers’ intent and the modern realities of immigration and globalization. Case law, such as United States v. Wong Kim Ark, provides a foundation for interpreting the Citizenship Clause but does not resolve all ambiguities. A nuanced understanding of “jurisdiction” and allegiance is essential for restoring the balance between historical intent and contemporary challenges.

Ultimately, the Fourteenth Amendment’s birthright citizenship clause embodies noble ideals, yet its modern application has diverged from its original purpose. The courts and Congress must collaborate to address these complexities, ensuring that the clause reflects allegiance and lawful presence while upholding its foundational promise of equality.

By aligning the Fourteenth Amendment with contemporary needs, including addressing ambiguities in jurisdiction, birthright citizenship, and representation, the judiciary can ensure that this landmark amendment continues to foster justice and unity in a rapidly changing world. Only through this comprehensive review can the Fourteenth Amendment fulfill its promise of equality and justice under the law for all who are genuinely subject to its jurisdiction.