A history of birthright citizenship, which soon could be under attack by Trump

As President-elect Donald J. Trump prepares to implement sweeping policy changes affecting American immigration and immigrants, one of the issues under scrutiny by his allies appears to be birthright citizenship — the declaration in the 14th Amendment to the Constitution that anyone born on U.S. soil is a U.S. citizen, regardless of their parents’ nationalities or immigration status.

Some prospective members of Trump’s team have said they intend to stop issuing federal identification documents, such as Social Security cards and passports, to infants born in the U.S. to undocumented migrant parents, according to The New York Times.

This first step down a path to deny citizenship to some individuals born in the United States reflects a conflict that’s been going on for nearly 200 years: who gets to be an American citizen.

Debates in American history over who gets citizenship and what kind of citizenship they get have always involved questions of race and ethnicity, as we have learned through our individual research on the historical status of Native Americans and African Americans and joint research on restricting Chinese immigration.

Nonetheless, even in the highly racialized political environment of 1898, the U.S. Supreme Court decreed the U.S.-born children of immigrants were citizens, regardless of their parents’ ancestry.

That decision set the terms for the current controversy.

Most citizens of the U.S. are born, not made. Before the Civil War, the U.S. had generally followed the English practice of granting citizenship to children born in the country.

In 1857, though, the Supreme Court decided the Dred Scott v. Sandford case, with Chief Justice Taney declaring that people of African descent — whether free or enslaved, and regardless of where they were born — were not actually U.S. citizens.

Congress rejects Dred Scott decision

After the Civil War, Congress explicitly rejected the Dred Scott decision, first passing legislation reversing the ruling and then writing the 14th Amendment to the Constitution, which specified that “[a]ll 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.”

This broad language intentionally included more than just the people who had been freed from slavery at the end of the Civil War: During legislative debate, members of Congress decided the amendment should cover the children of other nonwhite groups, such as Chinese immigrants and those identified at the time as “Gypsies.”

This inclusive view of citizenship, however, still had an area judges hadn’t made clear yet — the phrase “subject to the jurisdiction thereof.” In 1884, the Supreme Court had to interpret those words when deciding the case of a Native American who wanted to be a citizen, had renounced his tribal membership and attempted to register to vote.

The justices ruled that even though John Elk had been born in the U.S., he was born on a reservation as a member of a Native American tribe and was therefore subject to the tribe’s jurisdiction at his birth — not that of the United States. He was, they ruled, not a citizen.

It took until 1924 for all Native Americans born on U.S. soil to be recognized as citizens.

Immigration raised further questions about the text of the 14th Amendment in the late 19th century. An 1882 law had barred Chinese immigrants living in the U.S. from becoming naturalized citizens. A California circuit court, however, ruled in 1884 that those immigrants’ U.S.-born children were citizens.

In 1898, the Supreme Court addressed the question in United States v. Wong Kim Ark, ultimately ruling that children born in the U.S. were, in the 14th Amendment’s terms, “subject to the jurisdiction” of the United States, so long as their parents were not serving in some official capacity as representatives of a foreign government and not part of an invading army. Those children were U.S. citizens at birth.

In the Wong Kim Ark ruling, the court did not mention any distinction between the children of legal immigrants and residents and the children of people who were in the United States without appropriate documentation. All people born in the United States were automatically simply citizens.

A new debate has ignited over whether Congress or the president through an executive order has the power to change the boundaries around who gets to be a citizen.

Most legal scholars, even those who are quite conservative, see little merit in claims that established birthright citizenship rules can be altered.

At least until now, the courts have continued to uphold the centuries-long history of birthright citizenship, dating back to before the Constitution itself and early American court rulings.

But if the Trump administration pursues the policies key figures have discussed, the question seems likely to reach the Supreme Court again, with the fundamental principle hanging in the balance.

Carol Nackenoff is the Richter Professor Emerita of Political Science at Swarthmore College.

Julie Novkov is a professor of political science and women’s, gender and sexuality studies at the University at Albany, State University of New York.

A version of this article appeared on The Conversation, a nonprofit news organization dedicated to sharing the insights of academic researchers.

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