Protecting the right of birthright citizenship

It's called birthright citizenship, and it's spelled out in the first line of the 14th Amendment to the Constitution. 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. Everyone born in the United States is automatically a US citizen at birth, regardless of any aspect of their parentage or lineage, with very narrow exceptions being for the children of diplomats and invading occupying armies. Everyone else is a citizen of birth. Amanda Frost is a law professor at the University of Virginia. On the spectrum of constitutional issues, if there is ambiguous over here and crystal clear over here, where do you place this citizenship clause? I place it at the crystal clear end.

But polls show that the American public is pretty much evenly divided on whether citizenship should be granted at birth to the children of undocumented immigrants. And in January of 2025. This next order relates to the definition of birthright citizenship under the 14th Amendment of the United States. That's a good one. Birthright, that's a big one.

President Trump issued an executive order stating that the 14th Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The order would deny citizenship to the vast majority of children born to parents here illegally or temporarily. Roughly a quarter of a million children a year would be affected. The executive order was blocked by a lower court and is now before the Supreme Court. The Supreme Court first weighed in on the issue of citizenship nearly 170 years ago, in what's generally considered its most disgraceful decision. The infamous decision in Dred Scott versus Sanford. This is the decision from 1857, in which the Supreme Court said that no Black person, whether enslaved or free, could ever be a citizen of the United States. And Chief Justice Taney, who wrote that opinion, said, if you don't like it, you can amend the Constitution.

And that's just what happened after the Civil War in 1868, with the passage of the 14th Amendment. So the reconstruction Congress wanted to make it clear that all four million formerly enslaved people were citizens of the United States. They also addressed the fact that more and more immigrants were coming to US shores. And they recognize that the children of immigrants would also be citizens.

But 30 years later, the case of Wong Kim Ark came before the Supreme Court. Born in San Francisco to Chinese parents, Wong was denied re-entry to the US after a trip to China. Wong fought back, insisting on his rights as an American citizen. For me, Wong Kim Ark represents the common man.

Siblings Norman and Sandra Hong are descendants of Wong Kim Ark. He wasn't rich. He wasn't famous. He didn't have any extraordinary abilities. What he did was the willingness to stand up and assert his right as an American.

At a time of virulent anti-Chinese bigotry, the court ruled in Wong's favor, which seemed to settle the issue of birthright citizenship. But there have been dissenters. The reality is that the clause is very terse, and there are a number of issues that it did not address directly. And the issue that is of greatest concern today is the status of children of unauthorized aliens. And that was an issue that no one who supported the clause or opposed the clause addressed at the time of the 14th Amendment's writing and ratification. The Trump administration has relied on the scholarship of political scientist Rogers Smith to make their case. Smith, who co-wrote a book on birthright citizenship in 1985 when he was a professor at Yale, believes that Congress has the power to limit citizenship for those born to parents here illegally. In general, do you think the people through Congress should have more say in resolving ambiguities like the one you see here? Yes, I think that it has been a mistake for more than a half century for Congress, and often advocates for various causes to try to push these decisions onto the courts. It just goes straight to the Supreme Court to get what you want. Yes. Congress is not playing anywhere close to the role that it is supposed to be playing in the American constitutional system. They should be more actively representing the people. Absolutely. This was meant for the children of slaves. But while his work has been cited by those who want to restrict birthright citizenship, Smith is opposed to the Trump administration's efforts. How does it make you feel that your scholarship has been invoked by the people trying to limit birthright citizenship? I feel terrible about that, frankly. It did become an argument that has been used by people who are virulently anti-immigrant and often making the case with derogatory stereotypes of immigrants.

The majority of countries with universal birthright citizenship are in the Americas, seen here in green. But most of the world has been moving away from it. In January 2005, Ireland, the last European country to grant it, ended birthright citizenship after 79% of the country voted to restrict it. I wanted to go to Disneyland and we would always ask my mom, when are we going to Disneyland? When are we going to Disneyland? And she would always tell us soon.

Mariam Sobayo featured recently in The New York Times, was born in Dublin to Nigerian immigrants. The youngest of five siblings, she was born just one month after the country rescinded automatic birthright citizenship. But then I was trying to connect the dots and wondering, what's holding us back here? And I realized, oh, my sister is a citizen. My other sister is a citizen. My mom's a citizen now. But then I realized I'm the one that's not a citizen. I'm the reason why we can't travel.

Sobayo had no passport. She was stateless, even though Ireland was the only country she'd ever known. She'd even learned to speak Irish. Every child was born in the state of Ireland has to speak Irish. You pretty much learn Irish from ages 7 to 18. And to really immerse myself in it and then also think I'm learning a language in a country I don't even feel like I have roots to because I'm having to prove to the nail that I belong here. It was a complicated process. But when she was 18, Sobayo, now a social worker, finally became an Irish citizen. So August 2023, you get your Irish passport. Yes. What did that feel like? It kind of just felt like my life was finally beginning. I went a bit crazy booking holidays. I finally felt like the world was my oyster. And we can finally do a family holiday. We can finally just start to live without that excessive worry in the back of my mind. Immigration is a complicated global issue with no easy answers. One clear non-answer is to get rid of birthright citizenship in this country.

Amanda Frost believes part of what makes America exceptional is its long-standing embrace of immigrants. If you look at Fortune 500 companies, about half of them are run by immigrants or the children of immigrants. Children of immigrants do incredibly well in this country because they're integrated quickly into this nation. We do that better than Europe. You disagree with the executive order, but do you also think that there's something good that comes out of these conversations being had? If there's something good that comes out of this, it's that we get to talk about the goals of birthright citizenship, the fact that it was intended to end caste in America, to ensure equality, that it's consistent with these founding American values that rejected a heritable monarchy. The idea that we're all born equal. Let's not end this constitutional guarantee that fulfills these founding values of our nation.