John C. Eastman

John Eastman is the Henry Salvatori Professor of Law and Community Service, and former Dean, at Chapman University’s Fowler School of Law. He is also the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence.

The question of whether birthright citizenship should be abolished is based on the faulty premise that our Constitution actually mandates it. In fact, the text of the 14th Amendment’s citizenship clause 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.”

That text has two requirements for citizenship — that an individual is born on U.S. soil; and that an individual is subject to the jurisdiction of the United States when born.

“Subject to the jurisdiction” means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else.”

The drafters of the clause modeled it off of the 1866 Civil Rights Act which grants citizenship to “all persons born in the United States and not subject to any foreign power.”

And Senator Jacob Howard, who introduced the language of the clause on the floor of the Senate, contended that it should be interpreted in the same way as the requirement of the 1866 Civil Rights Act, which afforded citizenship to “all persons born in the United States and not subject to any foreign power.”

The Supreme Court has never held otherwise. Some advocates for illegal immigrants point to the 1898 case of United States v. Wong Kim Ark, but that case merely held that a child born on U.S. soil to parents who were lawful, permanent (legally, "domiciled") residents was a citizen.

The broader language in the case suggesting that birth on U.S. soil is alone sufficient (thereby rendering the “subject to the jurisdiction" clause meaningless) is only dicta — not binding. The court did not specifically consider whether those born to parents who were in the United States unlawfully were automatically citizens.

The misunderstood policy of birthright citizenship provides a powerful magnet for people to violate our immigration laws and undermines the plenary power over naturalization that the Constitution explicitly gives to Congress. It is long past time to clarify that the 14th Amendment does not grant U.S. citizenship to the children of anyone just because they can manage to give birth on U.S. soil.