Birthright Citizenship: Immutable or Just Custom?

The surfacing of the birthright citizenship issue in the presidential debate – notably by the Trump immigration position paper – has generated lots of media commentary, much of it wrong. The issue has often been described as doing away with the citizenship clause of 14th Amendment to the Constitution. Usually that provision is described as guaranteeing U.S. citizenship to all children born in the United States.

7688094718_57fe1e22dc_oThe Amendment states in Section 1: “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 clause, “…and subject to the jurisdiction thereof,…” limits the scope of the provision so that it does not apply to all persons born in this country. The Washington Post eliminated that clause with an ellipsis (…) when it editorially criticized the proposal to end birthright citizenship. But the clause has been interpreted to mean that the children born here to foreign diplomats or military stationed here do not acquire U.S. citizenship. And some constitutional scholars reason that in the historical context of when the amendment was approved the clause should have been interpreted to exclude citizenship for the children of persons not legally resident in the country.

The issue has never been directly decided by the Supreme Court and that is the reason that laws have been introduced in Congress to define the scope of citizenship by birth. FAIR has long advocated the adoption of a law to define citizenship by birth. The current practice is only custom. It is not immutable, unless it is so decided by the Supreme Court, and then could be changed only through a new amendment to the constitution.

This context means that when a candidate says he or she would not abolish the 14th Amendment, it does not mean that he or she favors the current practice of granting U.S. citizenship to the children of tourists, illegal aliens, or other non-residents.

About Author


Jack, who joined FAIR’s National Board of Advisors in 2017, is a retired U.S. diplomat with consular experience. He has testified before the U.S. Congress, U.S. Civil Rights Commission, and U.S. Commission on Immigration Reform and has authored studies of immigration issues. His national and international print, TV, and talk radio experience is extensive (including in Spanish).


  1. avatar
    Joel Wischkaemper on

    This article from the Federalist examines the issue and makes really critical points.

    Don’t Like ‘Anchor Babies’? Try ‘Products of Deception’

    “It is unlikely that Congress, which has complete power in this matter, intended such a broad application of the Fourteenth Amendment’s Citizenship Clause, and the Supreme Court has never held that illegal citizens must be considered U.S. citizens at birth. The Court has only made such a decision for children born to citizens or permanently domiciled immigrants (see United States v. Wong Kim Ark, which was about legal immigrants but has been repeatedly and wrongfully applied to include illegal aliens).”

    Given the fact that we have protested this issue so strongly, and since Congress and the Attorney General ..has.. to know about it, I find it a remarkable betrayal by the Bush and Obama administration of the American People. The cost to us is well beyond billions over the last 15 years.

  2. avatar

    What is the legal impact of the SCOTUS ruling INS vs Rios-Pineda? Does that ruling close the door on the possibility of legal challenges to the automatic birthright citizenship claims that the left are making when they inaccurately interpret the 14th Amendment?

  3. avatar

    Anyone who can be deported is not “under the jurisdiction” of the U.S. They are under the jurisdiction of their own country. Their children are citizens of the parents’ country of origin. I don’t believe there is any such thing as “dual citizenship” either. You can only pledge allegiance to one country.

  4. avatar

    For years the Democrats and Republicans have only been concerned about the rotary elections, special interest, and of course playing partisan politics. With that but that’s been at the expense of United States and the American people means nothing to them. They have literally betrayed every American citizen and instead of facing the reality that they work for us and we elect them to serve but this nation and the American people, the arrogantly dictate to us I think we have no right to object to the way in which they have betrayed us. “Illegals” have no right to be here pure and simple. Obama’s policy of open borders causes thousands of “illegals” to come into our country and immediately get every entitlement program which is paid for by every American taxpayer. The only time we hear about any politician whether they be a Democrat or Republican talking about fixing the problems of this nation is when they’re looking to get elected or reelected. The day after the election they go back to the form and betray every American citizen and never fulfill the promises that they made. We had enough of the politicians the American people have had enough. Donald Trump is the only one who has proven he is a true patriot who cares about this nation. Instead of the politicians paid attention and putting their own egos aside and try to understand that the American people have been out raged long enough, they attack Trump and obviously feel somehow that’s going to make the American people stop supporting him. They are delusional. Donald Trump will be the next president of the United States and I thank God for that.

  5. avatar

    Both “Birthright” and “Child Trafficing” are loopholes which have long been exploited by illegals which have nothing to do with their original intent. The House tried to close the “Child Trafficing” loophole after the invasion by Central America last summer (and ongoing) but was shot down by Dems in the Senate. Both loopholes need to be closed and made retroactive 10 years for those who thought they have successfully gamed the system and are home free. “Keep families together”, deport them all.

  6. avatar

    The 14th Amendment was written to make freed slaves citizens of the U.S. Now everyone is using this Amendment for illegal immigrants who come here to have their babies thinking that will automatically make them U.S. citizens. With the true meaning of the 14th Amendment, this does not apply to ANY illegal immigrants and has just been abused over the years so all those babies ARE NOT CITIZENS OF THE U.S.

    • avatar

      One thing never said is that all the “Anchor Babies” are dual citizens…….yet no one ever mention it……….send them to the country of their parents…….

    • avatar

      The posts I’ve read here are accurate. Ann Coulter has a good piece for reference for those wishing to debate the ilk on the left. The changes in interpretation of the meaning of the Fourteenth Amendment by the “left” is what is causing the problem not the intent of the Fourteenth Amendment. Let us all continue to fight for the correct interpretation and support politicians who also are correct in their version of the Fourteenth Amendment.

  7. avatar

    I thinks it’s neither. The majority of the voters were not in favor of granting “automatic” citizenship to anchor babies. It was imposed by the ruling clique against the will of the nation. So, calling it a “custom” is a semantic stretch.

    If someone keeps stealing from you for decades and gets away with it, it does not become a “custom”; it’s still an unlawful act.

    Remember, that the powers of the federal government have been listed completely in the Constitution, and by virtue of Tenth Amendment, the federal government is prohibited from doing things that the Constitution does not authorize it to. So, each an every time that they ‘automatically” give birthright citizenship to an anchor baby, they break the law of the land.

    How that lawbreaking could be considered a “custom”?

  8. avatar

    That well known right wing nut case Senator Harry Reid some years gave a speech on the floor of the U.S. Senate criticizing lax enforcement of our immigration laws by the federal government. I know this is hard for many of today’s open borders/pro-amnesty advocates to believe, but it is true. In his speech in support of his bill called the Immigration Stabilization Act designed to crack down on illegal immigration, Reid called the U.S. birthright ‘anchor baby’ immigration policy INSANE. Reid dropped his hard line approach to illegal immigration when it became evident to him he could never become Democratic majority leader in the Senate unless he did so. The truth is Jeb Bush’s strong support for this INSANE anchor baby immigration policy and for INSANE legislation granting amnesty, legal status and U.S. citizenship to 11 million plus unauthorized aliens dooms any chance he has to win the GOP Presidential nomination in 2016. I will give this much to Jeb Bush. He has his principles and will not change his position just to become President of the United State unlike Senator Reid who drastically changed his position on immigration in order to become the Democratic leader in the U.S. Senate.

    • avatar

      He would have Hell to pay in Spanish if he changed his immigratiion stance since his wife was an illegal alien they married in 1974…She was a student he taught in MX when she was a senior in HS……

  9. avatar

    Sean Hannity stated, “Sen. Rand Paul (R-KY)93%
    was right on this, Trump was right on this, Cruz is right on this, Walker’s right on this.” He then put up a quotation from Citizenship Clause author Senator Jacob Howard (R-MI) during the debate on the 14th Amendment 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.”

    • avatar

      Correct on all counts. Howard was the author of the citizenship clause and he insisted that the phrase “under the jurisdiction of” was included. It’s clear by the remarks he made during the debate that he did not mean the children of “foreigners, aliens” would be citizens.

  10. avatar

    Here is one website that gives a little background on the 14th amendment:
    Why would the authors of the amendment include the clause “and subject to the jurisdiction thereof”? If the amendment pertained to anybody born on American soil then why include the jurisdiction clause?

    Mexico has at least 50 consulates here in the United States. They are here to aid and assist their Mexican citizens who are mostly considered illegal aliens according to our federal law.

    The Mexican constitution states that children born in foreign lands to Mexicans are citizens of Mexico. As such I have to think that those children are subject to the jurisdiction of Mexico not the United States.

    • avatar

      A friend of mine a few years ago said that Mexico is our greatest enemy. I think that he may be right, in the long run anyway.

    • avatar

      there are also 11 PAN political offices spread around the country……….how soon will they start recruiting Hispanics into the party….and become active political force in the country….then we will have three parties………it’s coming.

  11. avatar

    trump use of word stupid is well justified. the birthright citizenship have been the vehicle for millions of lawless illegal aliens to act on their criminal intent. where in the world you’ll find acts such as pregnant women have been doing the cat / mouse games with the border patrol agents, sneaking in the USA border to give birth. where in the world you’ll find loads of pregnant women given tourist visas from all over the world, just to give birth in the US. this have been going on for years, yet none of the elected government officials have the balls to stop the wickedness of the birthright citizenship, isn’t that STUPID?. only trump sees the birthright citizenship have been corrupted by the border crosser illegal aliens, and those aliens with means or wealth, able to procure tourist visas to fulfill their bad intent. elected officials must reform the birthright citizenship ASAP to stop the damaging actions of illegal aliens / those aliens with tourist visas.

    • avatar

      Well, it could be more to it than just stupidity. I see the hostile where Mr. Trump sees the stupid.

      For it appears that some of the “Masters of the Universe” are resorting to very clever tactics in their plan to bring the US down.

  12. avatar

    Trump is correct on the issue but he needs to stop so much of the personal stuff. What was the point of this latest uproar with Megyn Kelly. There’s a way to say things and Trump needs to stop making the story about him and not the facts. There’s being tough and then there’s making needless controversy.