The Supreme Court’s history of birth
SCOTUS BACKGROUND
This article was updated on Feb. 5 at 12:50 p.m.
Shortly after being sworn into office on Jan. 20 for a second term, President Donald Trump issued an executive order ending birthright citizenship – the guarantee of citizenship to anyone born in the United States. Going forward, Trump instructed, people born in the United States will not be automatically entitled to citizenship if their parents are in this country either illegally or temporarily.
Three days later, a federal judge in Seattle temporarily barred the Trump administration from enforcing the order. Senior U.S. district judge John Coughenour’s interim order This court will not be the first.” This court will not be the first.”
Still more challenges to the Jan. 20 order have been filed in Massachusetts, New Hampshire, and the District of Columbia.
Birthright citizenship was explicitly added to the Constitution in 1868 when the 14th Amendment was adopted following the Civil War. The United States is one of roughly 30 countries, including neighboring Canada and Mexico, that offer automatic citizenship to everyone born there.
Coughenour concluded that there is a “strong likelihood” that the challengers in the Seattle case – the states of Washington, Arizona, Illinois, and Oregon – “will succeed on the merits of their claims that the Executive Order violate the Fourteenth Amendment” to the Constitution, which says, as relevant here, that “
ll 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.”
The litigation over Trump’s executive order is likely to focus on what it means for someone to be “subject to the jurisdiction” of the United States. The 14th Amendment aims to over Scott was born in Virginia as a Scott, who returned to Missouri after his The Supreme Court dismissed Scott’s case The court ruled that anyone born in Wong Kim Ark was born in San Wong was denied entry to the United Writing for the majority, Justice Horace Gray explained that although the “main purpose” of the 14th Amendment had been to establish the citizenship of Black people, including former enslaved persons, born in the United States, the amendment applies more broadly and is not restricted “by color or race.” Instead, he wrote, the amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”
There have historically been only a few exceptions to that general rule, Gray continued – for example, the children of hostile enemies who are occupying the country, and the children of foreign diplomats, as well as (until 1924) some Native Americans.
Chief Justice Melville Fuller dissented, joined by Justice John Marshall Harlan. Fuller argued that although the 14 Fuller argued that although the 14 In Plyler V. Doe Brennan explained that the phrase “with By contrast, the government argued, the U.S.-born children of undocumented immigrants and temporary visitors to the United States are not “subject to the jurisdiction of the United States” because they have permanent residence in, and owe “a measure of allegiance to,” their “parents’ home country.”[a]This article was originally published at Howe on the Court.
