On the heels of Donald Trump’s controversial immigration policy, everyone is talking about the 14th amendment – even though it does not guarantee citizenship for children of illegal immigrants.
After the civil war, the 14th amendment was created to aid in freeing the slaves. It overturned a Dred Scott vs Sandford decision which concluded that no black could be a U.S citizen. The question being asked by virtually everyone is, does it protect against the children of illegals?
The 14th amendment reads the following:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.”
The phrase “subject to the jurisdiction thereof”, according to former Chairman of the Senate Judiciary Committee Lyman Trumbul, meant “not owing allegiance to anybody else but subject to the complete jurisdiction of the United States” (source). Senator Jacob Merritt Howard of Michigan revealed the jurisdiction “will not, of course, include foreigners”
In the 1898 United States vs Wong Kim Ark case, the Supreme Court expanded the 14th amendment, stating that the children of legal, permanent residents were automatically citizens. Today, there exists a giant misconception about the constitutional mandate, which confers automatic citizenship for children of legal residents only.
The questions surrounding Donald Trump’s immigration policy should be about whether congress could potentially redefine the basic conditions needed for birthright citizenship, not about its constitutionality. Choosing not to include children of illegal or temporary residents would not violate the spirit of the 14th amendment.