The White House’s argument that birthright citizenship can be overturned conflicts with common law and legal precedent beginning before and extending after the creation of the United States. The 14th Amendment was passed with no prior, much less consistent bright-line constraints on entry to, continued presence in the U.S., right to citizenship, or right to vote. Common law prevailed to support birthright citizenship. After the 14th Amendment, no subsequent amendment or Supreme Court decision added any new constraints.
Permission to enter and reside in the U.S. was extremely relaxed
Prior to 1882, there were no systemic, law-imposed procedures for the United States government to review, approve, make conditional (such as time limits), or deny the entrance of foreigners into the U.S. Some states before the Civil War had set up rules, but state action was effectively abolished by the 14th Amendment, giving the federal government exclusive powers over immigration.
Power to remove foreign-born persons non-existent (except for war enemies)
Until the immigration acts of 1882 and 1891, there was no formal authority for the federal government to recognize a person as foreign-born, much less to deport a person. A provision close to that was included in the Alien and Sedition Act of 1798, which expired in 1800, but this act only addressed persons found to be working for an armed enemy.
Explicit citizenship recognition was nonexistent at the federal level
Prior to the ratification of the 14th Amendment in 1868, the concept and application of citizenship lacked precise definition, often relying on inherited legal traditions rather than explicit constitutional language. Some states established state citizenship. The 14th Amendment effectively made the designation of citizenship an exclusively federal matter.
There were tests of the right to vote, including property ownership, but none involving birth outside the U.S. Any white male born in the U.S. was deemed eligible, conditioned on a test such as property ownership.
“Jurisdiction” exclusions
The 14th amendment bars citizenship from those not “under the jurisdiction” of the United States. This had three classes of births: by diplomats, by enemy aliens, and by Native Americans this last one resolved by acts of Congress in mid 20th century). The diplomat and enemy liens exclusion were present in English law since the early 17th Century. No other exclusions have been seriously proposed until today.
The upcoming Supreme Court review will be a test of the standard of jus soli.
The Court’s work will boil down to if it will affirm completely or qualify the status of a key standard of assigning citizenship at birth. From the founding of the republic, a prevailing common-law standard was jus soli, or birthright citizenship by virtue of birthplace. This was derived directly from English common law. The governing English rule was set by a court case in 1608. There is no evidence that on or after the passage of the Constitution that standard was challenged by courts or legal experts—in fact, quite the opposite.
In Lynch v. Clarke (1844), the New York Court of Chancery ruled that Julia Lynch, born in the U.S. to temporary Irish visitors, was a natural-born citizen, affirming that “every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.” William Rawle’s 1829 treatise stated that “every person born within the United States… whether the parents are citizens or aliens, is a natural born citizen.”
The common law was disrupted by the 1857 Dred Scott decision, which barred Black persons from ever being citizens. The 14th Amendment was crafted explicitly to overturn Dred Scott. It effectively preserved the jus soli standard without needing to redefine it comprehensively. Instead, it stated when jus soli did not apply. It did not address the complicated case of Native Americans, who had treaty arrangements. Their full recognition as citizens did not take place until the mid-20th century.
No amount of legal gymnastics can distract from the fact that a key case found that the 14th amendment affirmed jus soli. When the Supreme Court hears the case, Trump v. Barbara, much attention will be given to one of the very rare times the Court has addressed citizenship after the passage of the 14th amendment: United States v. Wong Kim Ark (1898). The Court then said “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory [i.e. jus soli].” Those arguing against birthright citizenship have to say that the Court did not mean what it said in this 1898 case, and that the informal acceptance of jus soli prior to the 14th amendment was a mirage.