(The Center Square) As the Trump administration continues to pursue ways to quell “birth tourism,” legal scholars are probing potential actions Congress could take to rewrite the common interpretation of the 14th amendment’s citizenship clause.
The clause states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
That phrase has been interpreted over the last 150 years to guarantee citizenship to any child born in the United States – with a few exceptions – regardless of whether the mother is residing in the country legally.
The U.S. Supreme Court affirmed that interpretation in June in Trump v. Barbara, with Chief Justice John Roberts stating that the phrase “subject to the jurisdiction thereof” refers to the United States’ power to govern anyone living in its territory.
Critics of the court’s ruling disagree, arguing that the clause does not mean territorial jurisdiction, but national jurisdiction, which requires allegiance to the U.S. government
They further argue that the 14th amendment was meant to apply only to American citizens and recently freed slaves, not illegal immigrants or tourists who come to the U.S. explicitly to have children.
“This was an outcome-oriented decision, in my opinion. This is not a decision that was actually grounded in originalism,” Gene Hamilton, president of the America First Legal Foundation, said Friday in a webinar hosted by the Federalist Society.
“It’s not a decision that was grounded in anything other than wanting to avoid an awkward political outcome by certain members of the Court.”
“[I]t’s weird to me — to put it bluntly — to consider someone being subject to the jurisdiction thereof as implying simply that their mere presence in the United States…means that [they] are a member of the body politic, and [their] children should be citizens, and that there is nothing that could ever change that,” Hamilton added.
As of 2017, an estimated 4.5 million children under the age of 18 born to illegal immigrants were living in the U.S., according to the Federation for American Immigration Reform. An estimated 225,000 to 250,000 were born in 2023 alone, according to the Center for Immigration Studies.
