President Donald Trump has been outspoken about his desire to abolish birthright citizenship, a constitutional right that confers citizenship to anyone born within the United States. This week, he took a significant step by issuing an executive order aimed at eliminating this long-standing principle, which has been in place for over a century. However, just days later, a federal judge intervened by temporarily halting the order after 22 states raised legal objections.
The right to citizenship in the United States has historically been the result of rigorous struggles by various marginalized groups. In light of this, it’s worth examining how birthright citizenship has influenced legal cases across different communities and how the Justice Department is presently invoking these cases in its defense of Trump’s directive.
For instance, Native Americans were granted U.S. citizenship only in 1924, and the Justice Department has referenced this scenario as a legal comparison in defense of Trump’s order. They argue that simply being born in the United States does not guarantee citizenship; it also requires being “subject to the jurisdiction” of the U.S. The Department cited an 1884 ruling that stated members of Native tribes were not considered “subject to the jurisdiction” of the U.S. and thus not entitled to citizenship.
This analogy, however, has been criticized by many legal experts. Gerald L. Neuman, who teaches international and comparative law at Harvard, expressed skepticism about the strength of this argument, noting that it appears politically motivated and is rooted in entrenched xenophobic attitudes. Leo Chavez, a scholar on international migration at the University of California, Irvine, also dismissed the analogy as flawed, asserting that it conflates historical injustices with current immigration debates.
Moreover, Matthew Fletcher, a law professor and member of the Grand Traverse Band of Ottawa and Chippewa Indians, criticized the notion that outdated legal precedents should influence contemporary citizenship policy, suggesting that the Department of Justice is willing to exploit historical racial biases to achieve its goals.
In connection with the new order, Trump has also expanded immigration enforcement in sensitive areas, particularly affecting children in schools, which is notably significant in New Mexico. This state historically recognized its residents of Mexican and Spanish descent under the Treaty of Guadalupe Hidalgo in 1848. The New Mexico Constitution of 1912 explicitly states that these children should not be deprived of their right to public education, reinforcing that immigration status cannot bar access to schooling.
The concern regarding citizenship wasn’t limited to Native Americans or Hispanic descendants. The topic also resonated deeply within the context of enslaved individuals. In 1857, the Supreme Court’s infamous Dred Scott decision denied citizenship to Black individuals, claiming they were inferior and thus ineligible for citizenship. This ruling played a pivotal role in igniting the Civil War, and the post-war era witnessed the ratification of the 14th Amendment in 1868, which unequivocally granted citizenship to all born or naturalized in the U.S. This amendment effectively nullified the Dred Scott decision.
The case of Wong Kim Ark in 1898 further solidified citizenship rights for children born to immigrants. Wong, born to Chinese parents in San Francisco, faced denial of reentry under the Chinese Exclusion Act. However, the Supreme Court ruled in his favor, affirming that birthright citizenship applies to everyone born on U.S. soil, regardless of their parent’s immigration status.
This ruling was a significant victory for Chinese residents, as it established clear precedents against discriminatory practices. During a recent conference criticizing Trump’s order, Bill Ong Hing, a law professor, emphasized that the Supreme Court’s ruling centered on the question of jurisdiction, concluding that being born in the U.S. equates to citizenship.
Activists, such as Annie Lee from Chinese for Affirmative Action, highlighted the broader implications of Trump’s order, arguing that it affects all immigrant children, irrespective of their status. The sentiment resonates beyond legal frameworks, as many individuals see their belonging questioned irrespective of their citizenship, tying back to larger themes of racial discrimination and exclusion in American society.
Thus, the ongoing debate surrounding birthright citizenship is deeply interwoven with America’s legal history and its current socio-political landscape.
