Our political class is aflame, and our lawyer-ocracy is up in arms over President Trump’s executive order limiting the scope of “birthright” (or “soil-based”) citizenship to children of permanent legal residents. Children born to tourists, students from other countries, and others here on a short-term basis, plus people here illegally, are no longer to be regarded as citizens of the United States merely because their mothers happened to be on American soil when they were born.
Is that constitutional? Does the U.S. Constitution demand that virtually everyone born on our soil (basically everyone except for the children of diplomats who, by convention, are under their home country’s laws) be considered a citizen by birth?
Most lawyers and law professors think that the answer is yes. But is it quite so clear? The 14th Amendment 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.” Most of the discussion of this question thus far has focused on the meaning of the phrase “subject to the jurisdiction thereof,” and the prevailing view is that it was meant to include everyone who was, generally speaking, subject to American law. Although the Supreme Court has never ruled on the case of a child born to foreigners who are only here briefly, it has suggested that it would include them in the set of people who are citizens at birth.
