Does the Fourteenth Amendment Really Require Birthright Citizenship?

“I’d much rather find out whether or not anchor babies are actually citizens, because a lot of people don’t think they are.”  —Donald Trump, defending comments that babies born in America are not automatically citizens


Congress Has Plenary Power over Immigration

Article I, Section 8, Clause 4, of the Constitution says the following: “The Congress shall have power . . . [t]o establish an uniform rule of naturalization. . . .”  This means that Congress has the power to create the rules under which immigrants can become citizens.  And many Constitutional scholars believe that this Naturalization Clause is enough to give Congress the authority to decide what the parameters of citizenship are.

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The Meaning of the Fourteenth Amendment

Amendment XIV, Section 1, of the Constitution starts with the following sentence: “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.”  What this means is that persons born in or naturalized in the US, who are subject to the jurisdiction of another country, are not American citizens.  Babies born to foreign nationals are subject to the jurisdiction of another country—the country their parents hail from—and are, therefore, not US citizens.


But Wait . . . There’s More!

Amendment XIV, Section 5, of the Constitution states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  This particular clause means, quite simply, that Congress—in accordance with its plenary power under Article I, Section 8, Clause 4, of the Constitution—may pass laws that delineate the rules for citizenship, without any need for another Constitutional amendment to be passed, in order to modify the Fourteenth Amendment.  So, even if there is a dispute as to whether the language of Amendment XIV, Section 1, is clear enough, the Congress can just pass a rule to clarify its meaning.


And, If That Still Were Not Enough . . .

Senator Jacob Howard (who co-authored the Fourteenth Amendment with Senator Lyman Trumbull) explained what the modifying clause “subject to the jurisdiction of the United States” is supposed to mean, in a statement, published for posterity, in the Congressional Record of May 30, 1866 (, where he is on record as having said the following:

Birthright-Citizenship“I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion.  This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.  This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.  It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.  This has long been a great desideratum in the jurisprudence and legislation of this country.”

(Read more about the un-Constitutionality of birthright citizenship here:

Representative John Bingham, of Ohio, often referred to as the Father of the Fourteenth Amendment, issued this statement: “[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . .”


The Main Idea

All black slaves, of course, since they were not subject to the jurisdiction of any other country, and owed no allegiance to any other country, received American citizenship under the Fourteenth Amendment.  Making sure that ex-slaves were considered citizens in every state of the union was the main reason for writing the first section of the Fourteenth Amendment, in the first place.


The People Decide

If the American people decide, as a matter of public policy, that they want to grant citizenship to anyone born here, regardless of the status of their parents, they do have the power and the right to do so, through their representatives in the Congress.  But this kind of decision is not something that is required by the US Constitution.  Q.E.D.  (Quod Erat Demonstrandum.)

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by

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