For roughly a century, the United States has followed a simple, if unusual, rule for granting citizenship: All children born on American soil become American citizens. That rule is uncontroversial as applied to the children of citizens and lawful residents. But it also means that the children of persons unlawfully present in the country automatically become citizens — and this is hugely unpopular with the voters, roughly two-thirds of whom oppose it, according to a recent survey.

When Donald Trump called for an end to the policy, he was attacked from all sides and accused of wanting to repeal the 14th Amendment — a charge he has vociferously denied.

On this one, Trump is right: Ending birthright citizenship for illegal aliens would not require amending the Constitution. All that it would take is five votes in the Supreme Court to limit the scope of a century-old ruling, issued at a time when neither the Court nor the public was terribly concerned about illegal immigration.

To be sure, Trump’s position is now the minority view, but it has its defenders, including some very prominent law professors and jurists.

And the Supreme Court often has come to embrace new legal theories that at first seemed strained and even outlandish. Consider the court’s gay rights jurisprudence, which in just 30 years has gone from holding that the Constitution affords no protection to gay rights to insisting that it protects the rights of gay couples to marry.

On other issues, the court’s approach has evolved in a more conservative direction, as it has with respect to gun rights and campaign finance.

The law of citizenship may be no different.

The relevant provision of the Constitution is the first sentence of the first section of the 14th Amendment, which was ratified in 1868. It reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

This provision was chiefly included to overturn the holding of the notorious Dred Scott case, which prohibited the descendants of Africans who were brought to the United States as slaves from ever becoming U.S. citizens. In the wake of the Civil War, which resulted in the end of American slavery, it was thought important to make clear that the freed slaves and their descendants were indeed citizens.

The legal debate Trump sparked turns on the meaning of the phrase, “subject to the jurisdiction thereof.” Those who would restrict birthright citizenship argue that people who are unlawfully present in the country are not “subject to the jurisdiction” of the United States and that therefore, neither are their children.

The most important Supreme Court case on birthright citizenship is United States v. Wong Kim Ark (1898). Wong was born in the United States to parents who were Chinese nationals. After taking a trip abroad as an adult, Wong was refused entry into the United States, under a newly enacted law that restricted immigration from China and prohibited Chinese immigrants from becoming naturalized citizens. Wong sued, arguing that the Constitution made him a citizen by birth, and that no federal law could take that away from him.

By a vote of 6-2, the Court agreed with Wong. The majority held that the only people excluded from the operation of the Citizenship Clause were members of Native American tribes, who were then not U.S. citizens and were not generally subject to federal taxation.

Because Native Americans were subject to their own quasi-sovereign tribal authorities, they were not “subject to the jurisdiction” of the United States. Apart from the Indians, the Wong court wrote, “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”

Despite that strong holding, the Supreme Court could limit the scope of birthright citizenship without even overruling Wong, because that case didn’t directly raise the issue that Trump’s proposal presents. Wong’s parents were not “illegal aliens” — they had the legal right to live and work in the United States, though they were prohibited from becoming citizens.

Does that mean that today’s Supreme Court would uphold a federal law restricting birthright citizenship to the children of persons lawfully present in the country? I’d say it’s doubtful, but if President Trump got to appoint a few new members to the Supreme Court, it would become a lot more likely.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.

Copy the Story Link