Donald Trump has tried to justify ending birthright citizenship with his most deplorable justification yet.
In a recent press conference, Trump told reporters that birthright citizenship was “meant for the children of slaves” and that it wasn’t “meant for the whole world to come in and pile into the United States.” The president’s remarks come on the heels of his sweeping executive orders on immigration, which attempted to put an end to birthright citizenship entirely.
Trump’s comments surrounding birthright citizenship are a fundamental misrepresentation of the practice’s intent, and his efforts to undo birthright citizenship would overturn well over a century of precedent. The idea of birthright citizenship was first enshrined into constitutional law in 1866 with the ratification of the 14th amendment, the first sentence 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.”
The amendment was adopted to rectify the precedent set by the infamous Dred Scott case, an 1857 Supreme Court decision that justified slavery and led the nation into the Civil War. The Dred Scott decision was an exception to common law practices on birthright citizenship and made Black Americans and their descendants ineligible to become citizens whether they were born within the nation’s borders or not.
In 1898, the Supreme Court ruled that immigrants were subject to birthright citizenship protections as a result of Wong Kim Ark v. United States. Wong was the son of two Chinese immigrants and argued that he should be entitled to birthright citizenship regardless of his parent’s immigrant status due to the fact that he was born in America and therefore subject to the 14th Amendment’s protections.
Trump’s executive order concerning birthright citizenship attempts to create a loophole in birthright citizenship law. The language of the order reads that “birth in the United States does not by itself entitle a person to citizenship, the person must also be ‘subject to the jurisdiction’ of the United States,” implying that children of migrants are not “subject to the jurisdiction” of the United States because their parents hail from foreign nations. The executive order then attempts to justify this claim by citing an 1884 U.S. court case that denied Native Americans birthright citizenship because they were not “subject to the jurisdiction” of the U.S. government.
According to legal scholars, the Trump administration’s logic is deeply racist. “They’re digging into old, archaic Indian law cases, finding the most racist points they can in order to win,” wrote University of Michigan professor Matt Fletcher. University of California, Irvine professor Leo Chavez called Trump’s comparison invalid, saying that Trump’s executive order is using “the heat of race to make a political argument rather than a legal argument.” Harvard Law School Professor Gerald L. Neuman writes that the order is legally dubious, and instead extends from the Trump administration’s “openly expressed xenophobia and prejudice.”
Legal precedent surrounding birthright citizenship was historically established to expand human rights, not retract them. Trump’s attempt to justify a racist agenda by pointing to the very victims of American racism is a fundamentally flawed and deeply cynical reading of U.S. laws meant to protect the vulnerable. As Judge John Coughenour wrote in his decision to issue a temporary restraining order against Trump’s executive order, it is “blatantly unconstitutional.” Coughenour is not alone in this opinion, and 22 Democratic states have since sued the Trump administration over the order. While Trump believes that the Supreme Court will be on his side, the Court would do well to honor its humanitarian legacy and prove otherwise.
Published: Feb 2, 2025 11:27 am