Birthright Citizenship and the "Living Constitution"

Trump's executive order could pit ideological affinity against judicial philosophy

A map of countries with and without some form of birthright citizenship. Royal blue is unrestricted, azure is with some restrictions, and gray has no birthright citizenship. India (pale teal) abolished birthright citizenship in 1987 in response to unauthorized migration from Bangladesh.

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President Donald Trump had a busy first day. He rescinded 78 executive actions by President Biden across a wide array of topics. He ordered the end to remote work arrangements and ordered a hiring freeze for much of the non-military federal workforce. He withdrew from the Paris climate accords and (more significantly) from the World Health Organization.

He also issued an executive order rescinding birthright citizenship in the United States, defining “subject to the jurisdiction” of the United States for the purposes of the Fourteenth Amendment’s definition of citizenship as excluding those who are born to mothers who are in the United States without authorization or on temporary visas (provided the child’s father is not a citizen).

This last action, like most of the others, was not at all unexpected, and everyone assumes it will be litigated. What will be that litigation’s result? We can’t predict with certainty—but what is most interesting to me is that the case may pit both judicial liberals and judicial conservatives against themselves, which is to say, may pit their judicial philosophies against their political leanings.

I think Trump’s executive order is pretty clearly contrary to the original meaning and purpose of the Fourteenth Amendment’s language, which aimed to establish that the children of formerly enslaved people were citizens. Subsequent case law established that the children of foreign diplomats, as well as Native American children born in Indian Territory, were not guaranteed birthright citizenship because, while these children were born on the territory of the United States, they were not “subject to the jurisdiction thereof.” Unauthorized immigrants, by contrast, are clearly subject to the jurisdiction of the United States; they have no diplomatic immunity, and do not reside in a unique category of American territory with its own quasi-sovereignty and separate system of law. American law applies to them in every way, even if they have broken it. To my mind, the plain meaning of the Constitution is clear.

Does that mean the courts are going to strike Trump’s executive order down though? I’m not so sure. The body of precedent is thinner than is generally realized. The most important case, United States vs. Wong Kim Ark, deals with an individual born in the United States before the establishment of restrictions on immigration. His parents had not been eligible for naturalization because of their race, but their right to reside in the country was not in dispute because no such limits had been enacted into law. The whole question of authorized versus unauthorized immigration is anachronistic to the case—as, indeed, it is to the intent of the fourteenth amendment itself; at the time of ratification of the fourteenth amendment, there was no system for deciding who was authorized to come to America and who was not.

There is subsequent precedent, Plyler v. Doe, establishing that the Equal Protection Clause of the Fourteenth Amendment applies to the unauthorized immigrants and their children, but of course that clause speaks to the rights of “any person within [a state’s] jurisdiction” as opposed to the citizenship status of persons “subject to the jurisdiction” of the United States. That’s perhaps a thin wedge with which to split the two clauses, but thinner wedges have proved efficacious in the past.

Finally, the same case law that established birthright citizenship in the first place also clarified that children of an invading foreign army born on U.S. soil would not become citizens. I think comparing families migrating to the United States without authorization to an invading army is tendentious calumny, but the comparison has already been made, repeatedly, in political rhetoric, and the point is not whether there is anything morally comparable between the two but whether they have something in common in terms of their legal implications. I can picture the chain of analogy already, starting with a hypothetical Canadian army seizing Buffalo and aiming to repopulate it with Canucks, proceeding to members of a Mexican cartel building a secret armed camp in New Mexico and bringing their pregnant girlfriends along with them, and ending with a Chinese woman on a tourist visa coming to the United States for the sole purpose of giving birth and thereby doing an end-run around American immigration restrictions. Are not all of these “invasions” in some sense that should forfeit their participants the right to American citizenship for their children?

If you’re a textualist, none of this hair-splitting or analogizing should matter. The plain meaning of “subject to the jurisdiction thereof” is clear, and does not permit of excluding from citizenship children whose mothers didn’t have the right kind of visa before coming here and giving birth. If you’re an originalist, then the fact that the intent of the framers and ratifiers had nothing to do with categories of immigrants should also loom large. If you are a judicial conservative of any stripe, it should matter that while there’s not a lot of case law referencing the American Constitution, the true body of precedent extends back before the founding of the United States to sources in English common law. Americans are citizens not by virtue of the blood in their veins, but by virtue of soil under their feet. If this is where you’re coming from philosophically, and circumstances require you to rule on Trump’s executive order, I would think you’d strike it down.

But what if you believe in a “Living Constitution” whose meaning should change with the needs of the times as well as our own changing understanding of terms? In that case, perhaps that text, that history and those deep common law roots shouldn’t be dispositive. Back when the fourteenth amendment was ratified Americans didn’t think you had to be authorized to even be here, but now we do. Heck, back when the fourteenth amendment was ratified, so-called “birth tourism” wasn’t even physically possible. Should Americans have to go through the almost impossible process of amending the Constitution to deal with a contingency that the the ratifiers couldn’t even have conceived of? Shouldn’t contemporary Americans have the right to reinterpret the meaning of “subject to the jurisdiction thereof” in ways that accord with how those words land on our ears today? If gun control and the administrative state are ok, then why isn’t Trump’s executive order?

We’re not used to thinking this way because the “Living Constitution” was a creation of judicial progressives, and the contemporary cause of immigration restriction is a reactionary one. Trump’s order aims to restrict rights, whereas the point of judicial progressivism is to expand them. But judicial progressivism has also narrowed rights in the past—in particular, it has narrowed various economic rights (many of which were creations of an earlier era of judicial activism minimally rooted in the text of the Constitution) in order to expand the scope of government action to regulate the economy. This is arguably an analogous situation, where the core question at issue is the government’s ability to perform a key regulatory function.

As well, it’s worth noting that a number of other countries with a similar heritage from English common law to ours have, in recent years, restricted the scope of birthright citizenship. Australia, New Zealand, Ireland and the United Kingdom itself have all imposed limits on birthright citizenship over the past several decades, and India abolished it entirely. This kind of international comparison shouldn’t matter for someone who is a strict textualist or originalist, someone happy to say that if you want to change the Constitution then you should go and amend it. But it has mattered before to judicial progressives who understand just how hard it is to amend the Constitution, and how necessary, therefore, they would say it is to allow the Constitution to evolve with the wants and needs of the people.

Finally, there’s the question of popular constitutionalism. Trump’s order explicitly interprets the meaning of the Constitution. Does that matter? It doesn’t if you think the Supreme Court is the final arbiter of the Constitution’s meaning, as judicial conservatives since the days of John Marshall have tended to do. But if you are alive to the counter-majoritarian difficulty, and therefore believe the Court should be deferential to the elected branches, then perhaps it should matter to you.

I confidently expect the Supreme Court’s three liberals to stand with clear precedent and the text in spite of their willingness to depart from both in other circumstances. I’m less sure what the Court’s conservatives will do. Justice Gorsuch fancies himself a committed textualist; will he show the same commitment to this text? Justice Thomas has been known to strike down firearms laws that lack a legislative history going back to the 19th century to support them; will he apply the same logic to the matter of jus soli? Justice Roberts has rebuked the legislature and the executive from agreeing between them to muddle the separation of powers, proclaiming the judiciary the only branch allowed to draw and enforce the lines between the other two. How will he respond to Trump’s exercise in popular constitutionalism?

I honestly don’t know. But we’re going to find out. The one thing I do know is that, however the Court rules on the question, the losing side will proclaim the result a setback for “democracy.” Which kind of tells you everything you need to know about how far “democracy” has been set back already.