In an interview with the news program “Axios on HBO,” President Trump announced that he plans to issue an executive order ending birthright citizenship, the principle that everyone born in the United States, with a handful of exceptions, is automatically a citizen of the United States.
“It was always told to me,” the president declared, “that you needed a constitutional amendment. Guess what? You don’t.”
In fact, such an order would undoubtedly be unconstitutional. It would also violate a deeply rooted American idea — that anybody, regardless of race, religion, national origin, or the legal status of one’s parents, can be a loyal citizen of this country.
Birthright citizenship is established by the Civil Rights Act of 1866, still on the books today, and by the Fourteenth Amendment to the Constitution, ratified two years later. The only exceptions, in the words of the amendment, are persons not “subject to the jurisdiction” of the United States. Members of Congress at the time made clear that this wording applied only to Native Americans living on reservations — then considered members of their own tribal sovereignties, not the nation — and American-born children of foreign diplomats. (Congress made all Native Americans citizens in 1924.)
Embedding birthright citizenship in the Constitution was one of the transformative results of the Civil War and the destruction of slavery. Before the war, no uniform definition of citizenship existed. Soon after the conflict ended, members of Congress asked Horace Binney, a prominent lawyer and a former congressman, to explore the meaning of citizenship.
“The word citizen,” he responded, “is found ten times at least in the Constitution of the United States, and no definition of it is given anywhere.” States determined who was a citizen and the rules varied considerably. Massachusetts recognized free African-Americans as citizens; many other states did not. For persons immigrating from abroad, moreover, racial distinctions were built into federal law.