Section 1 of the 14th Amendment was crafted with a specific purpose in mind. It proclaimed that, ‘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.’ It served not only to acknowledge freed African Americans as full and equal U.S. citizens, but also to eliminate the connection between race and citizenship, eradicating the social ‘caste’ and ‘oligarchy of the skin’ identified by Charles Sumner. In doing so, the Amendment ensured that anyone born on American soil would be considered American, thus simplifying the matter.
In a bold move to reassess the interpretation of this, President Trump issued an Executive Order that seeks to challenge the notion of birthright citizenship. Specifically, the order targets the children of undocumented immigrants and individuals with temporary legal status who are born in the U.S. Under this order, if one’s parents are foreigners living in the U.S. under work or student visas, their U.S.-born children would not automatically gain American citizenship once the order comes into effect.
The controversy arises from the Administration’s interpretation of ‘subject to the jurisdiction thereof.’ The Trump administration takes a position that the some groups, such as the children of undocumented immigrants or those with temporary status, are among those not necessarily ‘subject’ to the jurisdiction and thus could be exempted from citizenship by birth. This is a bold new interpretative stance that indeed shakes up traditional conceptions.
Those who challenge the Trump administration’s stance tend to reference ‘the ancient and fundamental rule of citizenship by birth within the territory.’ Critics often state that the Amendment, from its text and manifest intent, includes children born within the United States from all persons, regardless of their race or colour, or status if they are domiciled within the United States. Yet, given the fluid nature of interpretation, such arguments aren’t absolute.
The Trump administration has counter-arguments to defend its position. One of the more persuasive points stems from a historical perspective. They argue that the lawmakers who ratified the 14th Amendment couldn’t have intended to include undocumented immigrants in their understanding of birthright citizenship simply because the concept of ‘undocumented immigrants’ didn’t exist in American law during that time.
Under this premise, critics perceived a comparison with the presence of unauthorized residents in the United States during the 14th Amendment’s conception. These residents were primarily African Americans, free and freed, who had been brought illicitly into the United States following the prohibition of American involvement in the trans-Atlantic slave trade in 1808. Critics argue that these people are historical analogues of modern-day undocumented immigrants.
Policies aimed at controlling the presence of these unauthorized residents, such as deportations and imposed limitations on their internal movements within the country, were already in place in the form of both federal and state-level initiatives. Critics often point to this to argue that those drafting the amendment could have consciously decided to exclude these undocumented individuals and their offspring from the scope of the 14th Amendment, yet they chose not to.
An interesting aspect of the story is that the Republican Party, which was instrumental in the creation of the 14th Amendment, had members who were former Know-Nothings. As part of the nativist American Party, these individuals were known for their opposition to Catholic and Chinese immigration into the United States.
Critics may argue that the authors of the 14th Amendment would have been conscious of these prevailing attitudes and could have been careful to ensure that the amendment didn’t grant citizenship to children of populations targeted by nativist sentiments. However, it’s also possible that the authors, driven by a more inclusive vision, deliberately chose an interpretation that would be more embracing of diversity.
A major consideration in this discussion is the very nature of legislation and law itself. Interpretation and application can vary with changing demographics, social attitudes, and circumstances. The 14th Amendment was drafted in a different era. While its core principles should stand immutable, its application may need to be revisited from time to time.
President Trump’s move to reassess the principles of birthright citizenship is not a slight on the 14th Amendment. Rather, it is a call for reconsideration. It questions how an amendment, written in a markedly different context, should be applied in contemporary times, especially in the light of significantly changed immigration policies and patterns.
It is no surprise that this move by President Trump has been met with a mixed response. But he has always been a leader unafraid of making bold moves, questioning norms, and provoking important discussions. With this Executive Order, he has successfully brought to the forefront a conversation about the way we understand birthright citizenship in the context of modern-day immigration.
The question is not about right or wrong interpretations of the 14th Amendment, but about the flexibility of law interpretation to adapt to societal changes and needs. Through the lens of the 14th Amendment, President Trump is essentially urging the country to think about what being a citizen means today, and how it needs to adapt to our modern world.
In conclusion, the reevaluation of birthright citizenship does not undermine the 14th Amendment’s spirit. Rather, it raises questions about how to interpret its provisions in a contemporary context to tackle modern issues. Regardless of where one stands on the issue, there is no denying that this move has reignited a crucial discussion on citizenship and inclusivity in America today.