Are Island Brazilian neighbors citizens of the U.S. if they are born on U.S. soil, even if their parents do not have proper documentation? The Constitution’s 14th Amendment, now 158 years old, when read properly, proclaims that they are. Its first sentence 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.” On the day he took the oath of office 14 months ago, President Donald Trump signed an executive order that claimed the children of undocumented immigrants were not citizens because they are not “subject to the jurisdiction of the United States.”
The MV Times covered this issue twice last year: first, just after the president signed the order, in an essay titled “Birthright citizenship and our Brazilian neighbors;” and then in “Birthright citizenship and universal injunctions.” These two essays appeared before the Supreme Court heard arguments on whether a child born to a person who enters the U.S. without documentation will be recognized as a U.S. citizen. On April 1, the court dealt with the case that challenges their citizenship in Trump v. Barbara.
U.S. Solicitor General John Sauer, arguing for the president, claimed that a child born to a person without documentation is not a citizen because the parents, he said, were not “domiciled” in the U.S. That is, they do not intend to make the U.S. their legal, permanent home. (Domicile is a technical legal term: according to the Cornell Legal Information Institute, it “refers to someone’s true, principal, and permanent home. In other words, the place where a person has physically lived, regards as home, and intends to return even if currently residing elsewhere.”)
In response, Cecillia Wang, the national legal director of the American Civil Liberties Union, contended, for the unnamed pregnant mother called Barbara, that the 14th Amendment’s citizenship clause has long been understood simply to mean that anyone born on U.S. soil is an American. She cited not only the Constitution but also English common law, on which U.S. law is based, as well as an 1898 Supreme Court case, U.S. v. Wong Kim Ark, and the 1952 Immigration and Nationality Act. They all entirely confirm her position concerning the longstanding, traditional view of birthright citizenship.
Let’s examine these one at a time.
First, English common law. In his friend-of-the-court brief (technically an amicus brief), Yale Law Professor Keith Whittington cited the 18th century English jurist and justice Sir William Blackstone, who is most well-known as the foremost interpreter of common law doctrine. In his famous four-volume “Commentaries on the Laws of England” (1765–69), he addressed the subject of birthright citizenship. Whittington states that Blackstone was clear about this matter when Blackstone wrote, “The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.” Whittington concludes that “according to Blackstone, most aliens within the realm owed local allegiance, or obedience, to the sovereign, and the sovereign in turn owed them protection so long as they were within his dominion.”
Second, the case of Wong Kim Ark. Though born in San Francisco, he visited relatives in China, but was unable to return to the U.S. because the authorities claimed he lacked U.S. citizenship because the 1882 Chinese Exclusion Act prohibited the immigration of anyone from China to the U.S. Wong Kim Ark was the son of undocumented immigrants who lived in California for 20 years before returning to China. He won his case when it reached the Supreme Court in a six-to-two decision. Writing for the court, Justice Horace Grey established the principle of jus soli, which recognizes citizenship of children born on U.S. soil to undocumented immigrants (or illegal aliens, as they are sometimes incorrectly called). Grey ruled that Wong Kim Ark’s parents were in fact domiciled in the U.S. at the time of his birth, giving him citizenship status. In other words, their allegiance was to the U.S. government.
Finally, the 1952 Immigration and Nationality Act. In this measure, Congress clearly restated in the law what the 14th Amendment declares: “The following shall be nationals and citizens of the United States at birth: a person born in the United States, and subject to the jurisdiction thereof.” In other words, Congress confirmed in a statute the constitutional provision that a child born in the U.S. automatically possesses U.S. citizenship, period.
Many justices on April 1 challenged Solicitor General Sauer’s argument concerning a person’s domicile. For example, Sauer claimed that an undocumented parent must absolutely intend to remain permanently in the U.S. for their children to become citizens. He said that with the influx of so many thousands of undocumented immigrants today, “it’s a new world in which billions of people are now a flight away” from the U.S. But Chief Justice John Roberts would not let him get away with this assertion. He immediately quipped, “Well, it’s a new world, but the same Constitution,” calling Sauer’s argument “very quirky.”
We will not know until June or July how the court will eventually rule. Island Brazilian
neighbors here will have to live in limbo until then, but based on the arguments before the
justices on April 1, we should have hope that they will confirm the traditional and longstanding
definition of birthright citizenship.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years.