On April 1, the Supreme Court heard arguments from Solicitor General D. John Sauer, who claimed that children, born of undocumented immigrants or temporary residents, physically in the United States at the time of birth, are not entitled to American citizenship. American Civil Liberties Union lawyer Cecilia Wang, on behalf of those rebuking President Trump’s efforts to overturn the Constitutional guarantee of birthright citizenship, advanced that the narrowed definition of “domiciled” offered by the solicitor general on behalf of President Trump was an aside in the preceding cases which guide the interpretation of the Fourteenth Amendment’s birthright citizenship clause. The proceedings occurred after President Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.” The order seeks to exclude only unauthorized immigrants and those with temporary legal status from being eligible for birthright citizenship. However, Executive Orders do not have the authority to amend the Constitution; only Congress has the power to propose Amendments. This makes the interpretative claim raised, a matter for The Supreme Court, which would need to narrow the definition of “domiciled,” silently overturning decades of precedent.
All this is very wordy. Let’s take a machete to this case and break it down chronologically.
Before the Declaration of Independence in 1776, English common law was imposed on all British colonies, including the ones that would become the United States. Thereby, the standards of birthright citizenship were that any person born in the British dominions were automatically subjects of the Crown and therefore citizens. Only two exceptions were distinguished: 1) any person born to an "alien" (foreigner) father, enemy to the Crowd at the time of birth, is an "alien" and 2) any person born to an "alien" father, and who is a diplomat accredited to the Crown by another sovereign, is an "alien."
These standards were upheld up until and after the ratification of the Declaration of Independence.
1868: The Fourteenth Amendment to the U.S. Constitution was adopted. It states in regards to American citizenship that “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.” A very influential reason as to why this specific prong of the Fourteenth Amendment was ratified was the aftermath of the American Civil War. Its aim was to effectively and durably overturn the Court’s ruling in Dred Scott v. Sandford, a 1857 case in which the Court held that African Americans could not be citizens and therefore had no right to enjoy the privileges of American citizenship. In passing the Fourteenth Amendment, Congress enshrined an assurance at the constitutional level which protected citizenship — specifically of those formerly enslaved — resistant to potentially changing tides.
1872: The Slaughterhouse Cases signaled the Supreme Court’s broad recognition of birthright citizenship, creating an interpretative precedent. While Slaughterhouse was not in itself a case on birthright citizenship, but on commercial exclusivity rights, it provided standards relying on American citizenship, reusing the same language from the Constitution, simply distinguishing between federal and state citizenship. Its primary holding was: “The Privileges or Immunities Clause of the Fourteenth Amendment is limited to federal citizenship rather than extending to state citizenship.”
1884: Elk v. Wilkins however marked a clear deviation from the primary interpretations of the Fourteenth Amendment’s applicability. It ruled that only people “under the jurisdiction [of the United States]” were guaranteed citizenship. This case, which held that a Native American born into a federally recognized tribe, although residing on American soil at the time of birth, was not an American citizen because he was not subject to the nation’s jurisdiction. This holding distinguished between full political jurisdiction and mere subjection to law.
1898: United States v. Wong Kim Ark may be the most essential case in this list of precedents in order to understand the claim the Trump administration made to the Court. In this case, Wong Kim Ark, a person born to Chinese parents “domiciled” in the United States, grew up in the United States as a citizen subject to its jurisdiction while simultaneously being a subject of China, was refused entry into the U.S. and detained on the basis of his American citizenship being invalid. It is important to understand this case was considered in the context of the Chinese Exclusion Act passed by Congress in 1882, which prohibited the immigration of Chinese people to the United States for 10 years and denied Chinese residents consideration for American citizenship. This is relevant because it shows the strength of the Constitution despite political tensions at the time: The Supreme Court ruled that Wong Kim Ark was unlawfully denied entry and was, in fact, a U.S. citizen under the provisions of the Constitution.
In United States v. Wong Kim Ark, the term “domiciled” was used in the majority opinion in order to align with the Constitution’s provision that a person born on U.S. soil was guaranteed citizenship. What the Trump Administration attempts to maneuver now, is that “illegal aliens” are not “domiciled,” only present, and therefore have no right to citizenship.
The legal definition of “domicile” is the “location of a person’s permanent principal home to which he/she returns or intends to return.” Infinite arguments about how this definition applies to immigrants are possible depending on your affinities. What is not eternally debateable, however, is the fact that the term “domicile” is mentioned nowhere in the Constitution. Although it has been used in legal proceedings, including those establishing precedent on the question of birthright citizenship, it should be loud and clear by now that a person, regardless of their parents’ legal status, born on American soil is entitled to birthright citizenship.
Being proud to be American doesn’t require flaunting the exclusivity of your passport. A passport which I personally have not acquired based on any merits. Casting foreigners as threats when we should fear intolerance legitimizes real, harmful policies. People create opportunity; diversity creates culture. I wish for a welcoming America, not one that imagines itself under siege.
We have drawn and quartered the globe, marking and sectioning it into spheres of influence and rivaling fortresses. If any place belongs to any person, it is surely the place that witnessed our birth. I don’t believe I deserve more recognition due to the luck of my generational circumstances. The question of birthright citizenship is a question of human dignity. In a country that claims to value opportunity, denying it at birth is a contradiction we should not accept.
Elise Clifford '29 is an Opinion Columnist and a Philosophy and Russian student in the College of Arts & Sciences. Her fortnightly column, State of Confusion, approaches the liberties and anxieties honed by disagreement, and the responsibility that comes with forming identity. She involves aspects of symbolism and skepticism that accompany the weight of glorification. She can be reached at eclifford@cornellsun.com.
