Media Outlets Claim Constitutional Amendment Needed to Cease “Birthright Citizenship”

by Sharon Rondeau

(Dec. 9, 2024) — On Sunday’s “The Big Weekend Show” on the Fox News Channel at 7:00 p.m. EST, co-hosts Dr. Nicole Saphier, Anita Vogel, Jason Chaffetz and Johnny Joey Jones reacted to President-Elect Donald J. Trump’s lengthy interview with Kristen Welker of NBC’s “Meet the Press,” particularly regarding his comments on abolishing the automatic awarding of U.S. citizenship to anyone born on U.S. soil.

The decades-long practice appears to have arisen from the 14th Amendment ratified in 1868, the pertinent section of which 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

During last night’s broadcast, the Fox News chyron read, “Trump Considers Changing 14th Amendment.”

Also citing Trump’s interview with Welker, local “Fox61” in Hartford, CT reported during its 10:00 p.m. Sunday news hour that an amendment would be required to alter “birthright citizenship.”

Neither outlet referenced legal opinions supporting or opposing their claim.

Trump told Welker that during his first term, he had planned to issue an executive order banning birthright citizenship, but “We had to take care of Covid first.”

A constitutional amendment requires either Congress, with a two-thirds affirmative vote from both chambers, or a two-thirds majority of state legislatures resulting from a constitutional convention, proposing one, followed by ratification from three-quarters of the state legislatures.

The U.S. Constitution has been amended 27 times, although 33 amendments have been proposed, and no amendment to date has originated from a constitutional convention.

Some reporting on Trump’s interview plainly misstated the wording of the 14th Amendment. On November 18, USA Today wrote, “Under the 14th Amendment of the Constitution, anyone born in the U.S. is a U.S. citizen, with limited exceptions…” However, on Monday the same outlet reported, “The 14th Amendment to the Constitution states that all persons born in the United States are citizens, and any executive order contrary to the Constitution would likely be immediately challenged in court.”

Indeed, Welker responded to Trump, “The 14th Amendment, though, says, that, quote, ‘All persons born in the United States are citizens.’ Can you get around the 14th Amendment with executive action?”

“Maybe we have to go back to the people, but we have to end it…,” Trump replied.

Some constitutional scholars believe the 14th Amendment has been misconstrued over the years to allow and even encourage foreigners to take advantage of the U.S. policy of birthright citizenship. In an October 30, 2018 post at The Heritage Foundation, Senior Legal Fellow Hans A. von Spakovsky wrote:

Birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution…

The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.

Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.

But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.

Others disagree. “President Trump says he can end birthright citizenship with an executive order. But most legal scholars — and even leaders of the president’s own party — are skeptical,” NPR reported the same day as von Spakovsky’s commentary was published.

NPR continued:

Trump’s proposal seems to rely on the work of a small but vocal group of conservative legal scholars who argue the 14th Amendment has long been misread. In particular, they argue, five key words — “subject to the jurisdiction thereof” — have been misread and that the authors of the 14th Amendment did not intend to give citizenship to the children of temporary visitors and other noncitizens.

“We’ve got this notion that just kind of developed over the last 40 or 50 years that is completely without any sort of legal authority,” said John Eastman, a constitutional law professor at Chapman University and a senior fellow at the Claremont Institute.

Most legal scholars say the Supreme Court settled this debate more than a century ago, holding that “subject to the jurisdiction thereof” refers to anyone present in the U.S., except for the children of diplomats and enemy soldiers (and, at the time, Native Americans).

In an editorial at The Washington Post in July of that year, former Trump administration national security official and attorney Mark Anton opined:

A Supreme Court confirmation fight always raises constitutional hopes and stokes constitutional fears. With one more justice, they’ll repeal Obamacare! If they get one more justice, they’ll overturn Roe v. Wade ! To arms!

These periodic, now-inevitable freakouts are a sad byproduct of our country’s drift away from political rule and over-investiture of power in the judiciary. But happily, the most urgent constitutional challenge of our time needn’t wait on a court ruling. Each political branch of government has the constitutional authority needed to fix it.

I refer, here, to ending birthright citizenship.

The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.

Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment. The purpose of that amendment was to resolve the question of citizenship for newly freed slaves. Following the Civil War, some in the South insisted that states had the right to deny citizenship to freedmen. In support, they cited 1857’s disgraceful Dred Scott v. Sandford decision, which held that no black American could ever be a citizen of the United States.

In a contemporaneous broadcast with Tucker Carlson responsive to Anton’s commentary, Hoover Institution fellow, radio host and commentator Victor Davis Hanson insisted the way in which the 14th Amendment has been interpreted must change.

“If it is true that the Constitution does not mandate citizenship for anyone born here regardless of status or the status of his parents, then why are we acting like [sic] that’s the law?” Carlson asked Hanson following his opening statement.

“Well, I think it’s because the 14th Amendment, following the Civil War, was aimed to address the problems of post-Civil War slavery; nobody really who drafted that law dreamed that we would have four million people born to foreign nationals, most of whom were here illegally, who would be granted citizenship…,” Hanson replied. He further argued the present system could be “modified” to stipulate, for example, “two resident aliens” would have to meet certain requirements for their U.S.-born child to be considered a citizen, or at least one parent must be a U.S. citizen for a child to obtain automatic citizenship.

In a controversial editorial published in Newsweek just after Joe Biden announced Kamala Harris as his vice-presidential pick, then-Chapman University Professor of Law and Claremont Institute Senior Fellow John C. Eastman questioned not only whether Harris is a “natural born Citizen” eligible to the presidency and, by extension via the 12th Amendment, the vice-presidency, but also whether she is a U.S. citizen.

“The language of Article II is that one must be a natural-born citizen,” Eastman’s article opens. “The original Constitution did not define citizenship, but the 14th Amendment does—and it provides that ‘all persons born…in the United States, and subject to the jurisdiction thereof, are citizens.’ Those who claim that birth alone is sufficient overlook the second phrase. The person must also be ‘subject to the jurisdiction’ of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully). Such was the view of those who authored the 14th Amendment’s Citizenship Clause; of the Supreme Court of the United States in the 1872 Slaughter-House Cases and the 1884 case of Elk v. Wilkins; of Thomas Cooley, the leading constitutional treatise writer of the day; and of the State Department, which, in the 1880s, issued directives to U.S. embassies to that effect.”

Eastman’s further queries focused on her parents, who hailed from Jamaica and India, respectively, and began attending the University of California-Berkeley on student visas in 1959 and 1960, respectively.

Harris was born in October 1964. Because U.S. law requires five years of residency for an alien to apply for citizenship, her parents would not have qualified.

In June 2021 The Post & Email received official documentation showing Donald Jasper Harris naturalized in September 1981. However, as Eastman noted, Harris’s mother, the late Shyamala Gopalan, may never have become a U.S. citizen, as no evidence appears to exist supporting it.

Eastman’s reasoning that failing her own naturalization, Harris might lack basic citizenship, cited the U.S. Supreme Court opinion in Wong Kim Ark which, he said, would have made Harris a “citizen” if both her parents had been “lawful permanent residents.”

Although appearing to equate “citizen at birth” to “natural-born citizen” similar to a 2015 Harvard Law Review Forum essay written by two former solicitors general but strongly refuted here, Eastman posited that if Harris’s parents were “merely temporary visitors, perhaps on student visas,…Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers—Jamaica, in the case of her father, and India, in the case of her mother—and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.”

In a legislative approach to birthright citizenship one year ago, Rep. Brian Babin (R-TX36) introduced a bill to “amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth.”

The bill was not assigned a number and did not pass out of committee.

Babin had proposed a similar bill two years before.

The 1952 Immigration and Nationality Act (INA), codified as 8 U.S. Code § 1401, states:

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.