Summary
Donald Trump’s pledge to end birthright citizenship faces major legal barriers, but experts say it’s slightly more conceivable now due to the conservative Supreme Court majority.
The 14th Amendment guarantees citizenship to anyone born in the U.S., and scholars argue Trump’s proposed executive action would likely be struck down.
Conservatives claim the amendment’s “jurisdiction” clause could exclude children of undocumented immigrants, though most experts disagree.
Ending birthright citizenship would require a constitutional amendment, an unlikely feat, and scholars warn it could revive caste-like inequality in the U.S.
Stupid question from a non-American: Is the intent behind the “subject to the jurisdiction thereof” wording not documented? It’s not like these are words conjured from the ether. People wrote them. Presumably after some discussion and debate.
I’m guessing the amendment as a whole was related to anti-slavery stuff following the civil war. But was there not some understanding at the time as the wider implications of the specific words?
Sure, I guess they can be interpreted however a modern conservative court wants, but why is discussion around the clause so ambiguous as to its origins?
An amendment to the Constitution is no trivial thing to pass. It typically requires a 2/3rds vote in both houses of Congress, then it passes to the states for ratification. 3/4 of the individual state legislatures then have to ratify the amendment in order for it to be added to the Constitution. Through the whole nearly 250 year history of the Constitution, only 27 have been passed, and 10 of those were in the original Bill of Rights that passed nearly concurrently with the original Constitution.
Every amendment thus by necessity is a major exercise in compromise. Which means different groups will support it for different reasons. So even if you are an originalist, a justice that attempts to rule based only on the original intention of the authors of an amendment, you will be able to find writings supporting numerous interpretations for it. And it’s not like we’re talking about a document millennia old, where most contemporaneous writings have been lost to time. We still have almost all the myriad writings associated with the various amendments as they were written, debated, and ratified. So a justice can find citations for any reasonably plausible interpretation. There’s probably no way to contort the 14th amendment to mean “private property is now abolished and we now live under Communism.” But you could interpret it anywhere from it being effectively toothless one one extreme to “even citizens of Germany under US occupation post WW2 automatically get US citizenship” on the other.
And there other judicial philosophies. Some are textualists, they disregard any intent behind the words and focus only on the literal meaning of the words themselves.
Others have a “living document” interpretation, willing to extrapolate and read between the lines.
And this assumes actual good faith on the part of the justices themselves. Often justices with a political axe to grind will start with their conclusion and work backwards from there.