That a person born in the United States and not excepted from its jurisdiction, which is otherwise absolute, is a citizen at birth has been well established not only by the 14th Amendment (which simply reaffirmed the color-blind nature of this precept) and explicit statutory declaration, but by the very Common Law which predated the independence of the United States of America or even the foundation of the colonies which became the Untied States of America.
This has been made clear, not only by United States v. Wong Kim Ark, 169 U.S. 649 (1898), but by a clear review of the actual historical evidence.
But President Donald Trump has declared that he can simply wish differently in order to effect a “quick fix” for some contemporary political problem by publishing by executive order an update to the Newspeak dictionary. And yet again, it becomes necissary to debunk that.
Folks, birthright citizenship isn't just some interpretation of a few weirdly phrased passages in the 14th Amendment. We had birthright citizenship BEFORE the 14th Amendment. It's actually one of the oldest and most fundamental principles of American law. 1/
— Dilan Esper (@dilanesper) December 9, 2024
We inherited our citizenship system from the British common law. Like most British colonies, we got our legal system from them. Our Constitution, with references to "common law" (7th Amendment) and "law and equity" (Article III) confirms the British basis of our legal system. 2/
— Dilan Esper (@dilanesper) December 9, 2024
There are two basic notions of citizenship. Some countries, most notably British common law systems, have "jus soli" citizenship, where being born somewhere confers citizenship. Other countries (notably civil law countries) have "jus sanguinis", i.e., bloodline citizenship. 3/
— Dilan Esper (@dilanesper) December 9, 2024
From the founding of this country, you were considered a citizen if you were born here. Indeed, during the colonial period there were various migrations of people from Britain into what became the United States. These people and their descendants became citizens. 4/
— Dilan Esper (@dilanesper) December 9, 2024
Furthermore:
There are exceptions to jus soli citizenship, but they are narrow. For instance, our relationship with Indian tribes was complicated, and we considered them dependent sovereigns we could make treaties with. Accordingly, a person born on Indian territory was a tribal citizen. 5/
— Dilan Esper (@dilanesper) December 9, 2024
Children of diplomats were considered citizens of their parents' country, under the fiction that a diplomatic mission was foreign territory and not subject to American jurisdiction. Again, these exceptions were preexisting. The 14th Amendment didn't invent them. 6/
— Dilan Esper (@dilanesper) December 9, 2024
The big and debated exception was slavery. To be clear, this was controversial. The citizenship status of slaves wasn't settled until the Supreme Court ruled in the Dred Scott case that slaves were not American citizens. This was a VERY controversial holding. 7/
— Dilan Esper (@dilanesper) December 9, 2024
BTW, stop to think about that. WHY was that holding controversial? Well,, the only reason it could be controversial is that we had birthright citizenship. After all, under a theory of bloodline citizenship, slaves and their children were still citizens of the country of origin 8/
— Dilan Esper (@dilanesper) December 9, 2024
But because the American creed had ALWAYS been that everyone born here is a citizen, the creation of slavery as an explicit exception to that was widely criticized.
And, of course, then the Civil War happened. 9/
— Dilan Esper (@dilanesper) December 9, 2024
In the wake of the Civil War, one of the Republicans' projects was to overturn Dred Scott and make it clear that all former slaves and their children were citizens. Accordingly, they put the Citizenship Clause in the 14th Amendment. 10/
— Dilan Esper (@dilanesper) December 9, 2024
The Citizenship Clause did not invent birthright citizenship. We already had birthright citizenship. It simply overturned Dred Scott and made clear that birthright citizenship was universal. It confirmed what a lot of people already thought was the preexisting rule. 11/
— Dilan Esper (@dilanesper) December 9, 2024
Further, and this is important for current debates– the Citizenship Clause specifically granted citizenship to the children, born here, to illegal immigrants.
It is often said there were no illegal immigrants before modern immigration laws. But that is not true. 12/
— Dilan Esper (@dilanesper) December 9, 2024
Under the Slave Importation Clause of the Constitution, Congress had the power after 1807 to ban the importation of slaves, i.e., what we call "the international slave trade". Congress exercised this power. After 1807, slaves brought to this country were illegally here. 13/
— Dilan Esper (@dilanesper) December 9, 2024
And of course, the fact that Congress banned the importation of slaves did not, in fact, stop the importation of slaves. It slowed it, but there were still instances. Remember the movie "Amistad"? That involved slaves entering the country in 1839 who litigated their case. 14/
— Dilan Esper (@dilanesper) December 9, 2024
Here's the key point– THERE WERE PEOPLE, BORN IN THE UNITED STATES, WHO WERE THE CHILDREN OF ILLEGALLY IMPORTED SLAVES AS OF THE TIME THE 14TH AMENDMENT WAS ADOPTED. I.e., the children of illegal immigrants. And the 14th Amendment made them citizens. 15/
— Dilan Esper (@dilanesper) December 9, 2024
Indeed, nobody doubted this, and nobody complained about this, and nobody said these children were not subject to US jurisdiction. They were born here, we had birthright citizenship, and everyone understood the 14th Amendment simply eliminated the slavery exception to it. 16/
— Dilan Esper (@dilanesper) December 9, 2024
That's really the end of the issue. We already had birthright citizenship, and when the 14th Amendment was passed, one of the things it did was specifically grant citizenship rights to the children of illegal immigrants, and nobody thought it didn't do that. 17/
— Dilan Esper (@dilanesper) December 9, 2024
But let's talk about the counter-argument. The 14th Amendment preserved the common law exceptions to birthright citizenship, OTHER than slavery– children of diplomats, and Indians. (Congress, BTW, later granted citizenship to Indians.) 18/
— Dilan Esper (@dilanesper) December 9, 2024
The way the 14th Amendment did this was by saying that the child born in the US had to be "subject to the jurisdiction" of the United States. In the case of both diplomats' children and Indians there was a separate sovereign who had the actual power over the kid. 19/
— Dilan Esper (@dilanesper) December 9, 2024
Importantly, it wasn't just "there's another nation out there", but that the United States LACKED jurisdiction. In other words, a child subject to TWO jurisdictions is subject to US jurisdiction.
But a child of diplomats has immunity from the obligations of US citizens. 20/
— Dilan Esper (@dilanesper) December 9, 2024
And a child of Indians born on Indian land is not subject to US authority, at least in the absence of Congress abrogating Indian sovereignty. (This doctrine remains to this day– McGirt v. Oklahoma recently held tribes have exclusive jurisdiction over Indian territory.) 21/
— Dilan Esper (@dilanesper) December 9, 2024
And THIS is what the Supreme Court held in the Wong Kim Ark case in 1873, which held that the children of immigrants are subject to US jurisdiction because they are not diplomats and not Indians, and thus have 14th Amendment citizenship. 22/
— Dilan Esper (@dilanesper) December 9, 2024
People attached to getting rid of birthright citizenship make two other arguments. Both of them are completely meritless.
First, they note that some have speculated that the children of an invading army's members would not be citizens. 23/
— Dilan Esper (@dilanesper) December 9, 2024
However, the problem with that argument is that the REASONING for that posited exception is because if an army is occupying US territory, the US would lack authority, and thus jurisdiction, in the territory. Thus, children born there wouldn't be subject to US jurisdiction. 24/
— Dilan Esper (@dilanesper) December 9, 2024
And of course, despite right wing rhetoric, migrants coming across the border are not an "invasion" in any legal sense. Indeed, if you look at the Constitution, the framers thought about what an invasion is. For instance, habeas corpus can be suspended during an invasion. 25/
— Dilan Esper (@dilanesper) December 9, 2024
States can make war during an invasion.
So if you call this an invasion in a literal rather than metaphorical sense, that means we can suspend habeas corpus and imprison anyone who looks like an illegal immigrant with no recourse, and Texas can bomb Mexico. 26/
— Dilan Esper (@dilanesper) December 9, 2024
That is not the law.
The other thing anti-birthright types claim is that there is something different about illegal immigrants. But the problem there is text and history. As I noted, the 14th Amendment granted citizenship to the children of a group of illegal immigrants. 27/
— Dilan Esper (@dilanesper) December 9, 2024
But also, you don't get to distinguish cases that announce broad legal rules based on facts that have nothing to do with the legal rule. Wong Kim Ark wasn't based on the parents being here legally; it was based on the child being subject to US jurisdiction. 28/
— Dilan Esper (@dilanesper) December 9, 2024
Nobody actually believes that we have no jurisdiction over US born children of illegal immigrants. There is no McGirt legal rule of immunity from state prosecution, and no diplomatic immunity. 29/
— Dilan Esper (@dilanesper) December 9, 2024
They are, perhaps, subject to MULTIPLE jurisdictions, but such children are still covered by birthright citizenship. 30/
— Dilan Esper (@dilanesper) December 9, 2024
And that's the end of the road here. I am sorry I am spending so much effort refuting a frivolous argument, but it's important considering a lot of conservatives are drinking a lot of Kool-Aid on this one. 31/
— Dilan Esper (@dilanesper) December 9, 2024
They WANT the law to be a certain way so they are scraping for a rationale.
But literally there are few rules in all of American law with the combination of historical pedigree, common law justification, AND constitutional text that birthright citizenship has. 32/
— Dilan Esper (@dilanesper) December 9, 2024
There's just no room here for counter-arguments. And the courts should quickly and decisively dismiss any attempt to mess with it. End/
— Dilan Esper (@dilanesper) December 9, 2024
N.B. Wong Kim Ark was decided in 1898, not 1873, as the thread author notes the incorrect date being a typo.
