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The following legal and historical context of citizenship by birth in the United States might throw some light without too much heat that will promote a better understanding of the legal issues that are in play for some readers.

The Fourteenth Amendment to the United States Constitution is the basis for recognizing citizenship by birth to children born to aliens with no lawful immigration status in the United States.  Some have advocated for a change of this legal interpretation of the Fourteenth Amendment to end recognition of citizenship by birth alone which would remove some of the force that drives illegal immigration into the United States.

Some readers might be interested to know that in a 1924 legislative act consisting of two sentences Congress granted United States citizenship to all noncitizen Indians born within the territorial limits of the United States.  See the Act of June 2, 1924.

It is interesting to note that in a majority of countries other than the United States, persons born to parents who have no legal status in the country of such persons’ birth do not derive citizenship by birth of the country in which they were born.  Instead, they derive the citizenship of their parents or must satisfy additional conditions for citizenship other than mere place of birth.  See Birthright Citizenship Around the World, Law Library of Congress (November 2018).

Before ratification of the Fourteenth Amendment on July 9, 1868, citizens of the States were considered citizens of the United States.  This gave the various States the ability to prevent persons living within the jurisdiction of a State from enjoying United States citizenship and its concomitant benefits because to be a United States citizen a person first had to enjoy citizenship in at least one State.

In 1857, the United States Supreme Court in Dred Scott v. Sandford, 60 U.S. 393 (1857) held that, because Mr. Scott who had sued for freedom for himself and his family had been a slave under Missouri law, he could not establish subject matter jurisdiction to file a law suit in federal court.

More precisely, to establish subject matter jurisdiction in federal court, a plaintiff must either classify the controversy as a federal question or meet the criteria for diversity jurisdiction by establishing that none of the parties shared citizenship in the same State.  Mr. Scott attempted to demonstrate diversity jurisdiction by claiming to be a citizen of Missouri (at that time a slave State) and that he had gained his freedom when his previous owner had transported him into Illinois and the Wisconsin Territory where slavery was illegal.  Mr. Scott did not share State citizenship with the defendant who was allegedly a citizen of New York.  Therefore, Mr. Scott reasoned that federal subject matter jurisdiction must exist.

The United States Supreme Court summarized the jurisdictional issue under review as follows:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

Dred Scott v. Sandford, at 403.

Chief Justice Roger B. Taney, writing the majority opinion, answered the jurisdictional question in the negative.  In doing so, Chief Justice Taney not only rejected Mr. Scott’s assertion of subject matter jurisdiction, but held that, in the context of the facts in the record under review, Mr. Scott, as a slave or former slave, could not claim any kind of political identity under the United States Constitution as any kind of citizen, making it impossible for him to ever establish diversity subject matter jurisdiction in any federal court.   

The result of this decision was that no black person (even a freed black person) could be a citizen of the United States unless that person was first recognized as a citizen by an individual State. 

Decided on the brink of the American Civil War, the Dred Scott decision had other ramifications.  This decision cast the shadow of unconstitutionality over the Missouri Compromise in favor of slavery and touched upon notions of State sovereignty rights and citizenship that differed from the legal conceptions of those like Abraham Lincoln in the newly formed Republican Party. 

Abraham Lincoln believed the “Union” under the national government preceded the United States Constitution (which merely perfected it) and functioned with popular consent independent from any compact with the various States.  Thus, Lincoln reasoned that no State had the right to unilaterally secede from the Union.  Moreover, according to Lincoln, the phrase in the United States Declaration of Independence; “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” applied to all human beings, including slaves and former slaves.  See the First Inaugural Address of then-President Abraham Lincoln, March 4, 1861 (“. . . we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself . . .”).  

More pithy language can be found in this inaugural address and other discourse by Abraham Lincoln.  By introducing it, I am merely offering a glimpse into a window with a vista that might pique the interest of readers who are curious or could become curious about United States history.  However, new, voluminous subject matter of profound import is clearly an attractive nuisance that could easily distract both author and reader beyond the narrow scope of citizenship by birth.

For context, it seems important to know that at the time of the Dred Scott v. Sandford decision the Missouri Compromise had essentially been repealed by passage of the Kansas-Nebraska Act in 1854.  Thus, the 1857 Dred Scott v. Sanford determination that Congress did not have authority to prohibit slavery in new territories erected a barrier to slavery opponents who were seeking to re-establish the Missouri Compromise or something like it to stop the spread of slavery in newly emerging territories.

The last thought that comes to mind about the Dred Scott v. Sandford decision is that it ostensibly serves as a glaring example of how it is easier to make something legal than to make it right.  Hence, it lends insight to the meaning of an old curse:  “May you have a law suit in which you know you are right.”     

Returning to the Fourteenth Amendment and United States citizenship by birth, it seems reasonable to conclude that one central reason behind the Fourteenth Amendment is to settle the citizenship question relating to newly freed slaves.  General Robert E. Lee had surrendered the southern army to General Ulysses S. Grant on April 9, 1865.  On July 9, 1868, the ratification date of the Fourteenth Amendment, President Abraham Lincoln’s Emancipation Proclamation which freed millions of slaves in all rebelling States as of January 1, 1863 had been in effect for little more than 5 years.  Also, Congress had passed the Civil Rights Act of 1866 on April 9, 1866 and other legislation aimed at protecting the rights of freed slaves (over the veto of Lincoln’s successor, President Andrew Johnson) including United States citizenship by birth.  Johnson’s veto was based in part on the view similar to that expressed in Dred Scott v. Sandford that Congress lacked constitutional authority to impose on State sovereignty.  Thus, the Fourteenth Amendment to the United States Constitution not only reinforced the legal protection of citizenship by birth for freed slaves, but also eliminated any potential legal argument that the provisions contained in the Civil Rights Act of 1866 and other related legislation were unconstitutional.  

In part, by recognizing United States citizenship by birth, the Fourteenth Amendment made it impossible for States to prevent former slaves from becoming United States citizens by withholding State citizenship which had previously been endorsed in the Dred Scott v. Sandford decision.

After enactment of the Fourteenth Amendment, States could no longer prevent any black person from being recognized as a United States citizen or from being recognized as a State citizen, and could not deny the rights and benefits appertaining to such citizenship.

The legal controversy precipitated by President Trump's executive order arises from opposing interpretations of the Fourteenth Amendment relating to recognition of citizenship by birth in the United States of persons born to aliens who are present in the United States without permission.  The controversy revolves around the meaning of “jurisdiction” as it is used in the language of the Fourteenth Amendment (i.e. “All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . .”).  [emphasis added]  See U.S. Const. amend. XIV § 1.

Without getting too far into the weeds of the legal arguments for and against recognition of United States citizenship of children born to aliens who avoid immigration inspection and have no legal immigration status in the United States, a general description of opposing positions might provide insight. 

The advocates for recognition of citizenship in such circumstances assert that any person in the United States is “subject to the jurisdiction thereof.”  

Advocates for not recognizing citizenship in such circumstances insist the jurisdiction language in the Fourteenth Amendment is more narrowly based on a formal relationship between the United States and a person within its territory; and that the British feudal policy of birthright citizenship (from which the concept of citizenship by birth is derived) was repealed by the fundamental intent of the underlying the Declaration of Independence and American Revolution and rejected by the authors of the Fourteenth Amendment, as allegedly indicated in the Fourteenth Amendment’s legislative history.  According to this reasoning, a foreign national who is in the United States without permission is “subject to the jurisdiction” of that person’s country of nationality or citizenship.  Moreover, advocates opposing recognition of United States citizenship by birth alone emphasize that there are currently no more freed slaves in the United States with need of the protection and benefits of United States citizenship as provided by the Fourteenth Amendment. 

Finally, according to advocates opposing recognition of United States citizenship by birth alone, the legal interpretation underlying previous policy renders the jurisdictional language of the Fourteenth Amendment to be surplusage (i.e. legalese referring to a rule of statutory construction that a law cannot be interpreted in a way that renders any statutory text to be surplusage or without meaning or application). In other words, if Congress had intended any person who is born in the United States to be a United States citizen it would have omitted the jurisdictional language because there is no purpose for the phrase, "and subject to the jurisdiction thereof."  Application of the legal text bestowing citizenship by birth in the United States would have the same result without the jurisdictional language.

As a practical matter, attributing the citizenship of the parents or parent having no lawful United States immigration status to a newborn child would reduce the strength of the magnetic pull of what some in the news media and some political pundits have described as “anchor babies.”