As Donald Trump and some other Republican presidential candidates argue, is it possible that the Fourteenth Amendment’s guarantee of birthright citizenship to all children born in the United States could really be changed by Congress? The legal basis for a merely statutory change taking away that constitutional right is quite unsteady.
America has generally used the common law principle that any birth within the country made one a citizen of the country for 400 years now. In 1857, the Supreme Court’s Dredd Scott decision refused to recognize the citizenship of an African-American born into slavery; however, the decision was reversed by statute in the Civil Rights Act of 1866 and again in 1868 by the adoption of the Fourteenth Amendment to the Constitution. The only way to deny status would be to amend the Constitution again.
Trump is proposing to test a legal theory that was initially proposed in a law review article in 1985 and has been of increasing interest to the anti-immigration movement. The language of the amendment – “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” is open to interpretation.
On a policy level, the Fourteenth Amendment’s rule has meant that there is a simple, bright-line test to determine whether a person is a United States citizen: was the individual born in the United States. The United States has a strong record of assimilating various immigrant groups who have come here over the years, unlike European countries, where the second and third generations of immigrants are often excluded from citizenship in the only home they have known. If that rule is changed, it will have to be changed by amending the Constitution.