Is Birthright Citizenship in the Constitution?

Donald Trump’s aggressive push to end birthright citizenship is raising Constitutional questions. The answer isn’t clear cut. The Daily Caller reports:

In the U.S., birthright citizenship traces back to a clause in the 14th Amendment to the Constitution, passed just after the Civil War. The amendment’s citizenship clause states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The clause itself is based on the legal concept of jus soli, or citizenship by “right of soil,” which contrasts with jus sanguinis, or citizenship by familial descent. It has been widely taken to apply to anyone born within U.S. territorial jurisdiction regardless of the immigration status of their parents, with the notable exception of foreign diplomats.

In its 1898 ruling in the Wong Kim Ark case, the Supreme Court held that the children of non-citizens, when born on U.S. territory, are U.S. citizens by birth. However, the parents in question in the Wong Kim Ark case were legal immigrants, meaning the court did not directly address the status of children born to parents in the U.S. illegally.

That unanswered question gives Trump room to argue the citizenship clause has been too widely interpreted, according to Johns Hopkins University professor Martha Jones, an expert on birthright citizenship.

The fact that Trump seems to want to target children born to legal, green-card holding immigrants, and that it would be done through an executive order could be seen as overreaching. However, the questions of the citizenship for illegal aliens’s children is not set in stone and could be clarified with a law.

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  1. jason November 1, 2018

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