President Trump’s attempt to rewrite the Constitution as part of his mass deportation campaign faces an ultimate test tomorrow, in the U.S. Supreme Court. The controversy, vigorously debated today, has roots more than four centuries ago in English legal history.
The core issue is who is an American citizen, according to the Constitution? That basic document does not define it, leaving it to politicians and judges to spell it out – a process that has created controversy through all of America’s existence.
A tragic fact about the controversy has been that, almost every time there has been a movement in America to limit who is a citizen, the effort has been driven at least in part by racist hostility to foreigners, especially those who are born in this country.
The worst example was the Supreme Court’s 1857 decision in Dred Scott’s case, forbidding citizenship for anyone of African ancestry. America overturned that decision 11 years later by adopting the 14th Amendment.
That Amendment will be at the center of Wednesday’s hearing at the Court in the case of Trump v. Barbara. (“Barbara” is the name given in this case to an anonymous woman from Honduras, who now lives in New Hampshire and recently had a child who would lose citizenship under the Trump order.)
President Trump’s aim, vigorously pursued in his second term, is to deny U.S. citizenship to children born in the U.S. to parents who entered the U.S. illegally or whose parents are in the country only temporarily, to work, study or tour.
Last week, in remarks on the Fox News network, U.S. Attorney General Pamela Bondi had that in mind when she said: “Being a citizen in our country is a privilege, not a right. And Donald Trump is going to have everyone in this country who deserves to be here who is a citizen.”
Every lower federal court that so far has reviewed Trump’s effort has ruled that it is unconstitutional, that citizenship at birth is a constitutional right. However, the Supreme Court is taking on the question anew in tomorrow’s hearing, and one way to interpret that is that at least some of the Justices seem to want to make a fresh start.
Although there are two historic Supreme Court decisions on the issue, both made in the 19th Century, there still seems to be room for debate over how binding those precedents are. The Library of Congress, in a detailed study of the controversy in 2015, concluded that “it is not necessarily clear that the question has been truly settled.”
The dispute centers on the Fourteenth Amendment, ratified in 1868, and on that amendment’s Citizenship Clause. It has two parts that are under review by the Court. The first grants citizenship (nationally and in the state where the person lives) to “all persons born or naturalized in the United States.” The second says that it applies when the U.S.-born person is “subject to the jurisdiction” of the United States; it does not define that added phrase.
In American law, there has long been a consensus that the place of birth – the geographical location – determines citizenship. (The Latin phrase for this concept is jus soli, the law of the soil.)
In that interpretation, the status of the parents does not make any difference to the child’s citizenship. That right, in short, is automatic.
This approach is often traced, by its supporters, to a court ruling in England in 1608, known as Calvin’s Case. Some of the most famous judges in English history took part in that ruling, including the single best-known jurist of that era, Sir Edward Coke.
The decision concluded that a child born in Scotland was a citizen of England, because the birth had occurred after the King of Scotland, James VI, also assumed the crown of England. That decision established the English common law definition of birthright citizenship.
That approach is what its supporters regard as the true meaning of the 14th Amendment Citizenship Clause. Their argument is exactly what the Supreme Court decided in 1868, in the case of United States v. Wong Kim Ark
That decision is named for a child born in San Francisco in 1873 to Chinese parents then living in the United States. After he later made a visit to China, he was barred from re-entering the U.S. by a customs officer who declared that he was not a citizen because U.S. laws at the time barred all people of Chinese descent from entering this country. Directly applying the ancient common-law approach of Calvin’s Case, the Supreme Court wrote the jus soli interpretation into the Constitution in the wording of the Citizenship Clause.
President Trump, and the legal scholars and lawyers who agree with his view of that Clause, have argued that its true meaning depends very much on the legal status of the parents and their legal relationship with the U.S. government when they have a child while in this country.
This interpretation focuses on the second part of the Citizenship Clause, applying the right to those under U.S. jurisdiction when their child is born. That provision, according to the Trump view, expressed in an Executive Order, “has always excluded from birthright citizenship persons born in the United States but not subject to the jurisdiction thereof.”
Parents who are in the country illegally, or who owe allegiance to the nation from which they came, are not under U.S. jurisdiction but rather are in an excluded category akin to foreign ambassadors who temporarily live in the U.S., according to Trump’s argument. “Jurisdiction,” as he sees it, is based upon a kind of bargain, a mutual consent agreement in which the foreign person obeys U.S. laws in exchange for the government’s protection. Geography, in short, is said to be insufficient to establish birthright citizenship.
Those who support Trump’s approach rely heavily upon language that can be found within the English ruling in Calvin’s Case and in the Supreme Court ruling in the case of Wong Kim Ark — wording that they read as embracing notions of allegiance. That, they insist, is what the Constitution means in using the word “jurisdiction.”.
They also argue that there is a Supreme Court decision that directly supports Trump’s view: another 19th Century precedent. In 1884, the Court ruled in the case of Elk v. Wilkins that Native Americans in the U.S. are not fully subject to U.S. jurisdiction – and thus their children are outside of the Citizenship Clause – because the Constitution treats them as owing allegiance to their native tribes. The Constitution treats tribal Indians as partly outside of the U.S. political community, as if they were like foreign nations dealing with the U.S. government through treaties.
On this point, those who support the concept of birthright citizenship under the 14th Amendment — the jus soli approach — respond to Native Americans’ status as entirely beside the point because Native Americans have always been in a separate category in the Constitution, a status never altered by any constitutional amendment.
Tribal members, this side argues, remain in their own political communities but also have been brought into the larger American political community because Congress chose in 1924 to pass a special law granting tribal members national citizenship — an action unrelated to the meaning, now or in years past, of the Citizenship Clause.
Even if both sides in this deep dispute claim that history tips the constitutional scales their way, they will find in Wednesday’s hearing that they must win at least five votes from the nine Justices in order to prevail. This is a Court that has its own views on how to read constitutional history, and how it reads precedents.
After the hearing, the Justices will deliberate for weeks before releasing their decision, probably in late June or early July.
