Why do we have birthright citizenship, and should it change?

Donald Trump is not the first Republican presidential candidate to float the idea of scrapping the principle that anyone born in the United States automatically becomes a US citizen. And he probably won’t be the last.

Both Tim Pawlenty and Herman Cain raised the notion four years ago. Candidates Scott Walker and Bobby Jindal, himself the son of immigrants, have clambered aboard. 

The idea is popular in certain circles because it appeals to voters who assume that undocumented aliens exploit the principle deliberately.

The problem is, is that this not just a legal principle, but a constitutional right; a constitutional right that was introduced to combat racism in the aftermath of the Civil War. Slaves were not considered citizens after Independence, despite the notion that 'all men are created equal.’ But the status of free blacks was ambiguous.

The principle of ‘birth-right citizenship’ was inherited — like so many elements of American law — from ancient English common law. It was reaffirmed in several legal decisions. But then in 1857 came the infamous Dred Scott case, a Supreme Court decision that denied automatic citizenship to Americans born here of African descent.  

After the Civil War, the Civil Rights Act asserted birthright citizenship in 1866, in order to prevent state governments denying citizenship to blacks. This was reinforced by the 14th Amendment to the Constitution in 1868.

The 14th Amendment is pretty clear: "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 people who passed the 14th Amendment wanted to take things out of the hands of politicians and Congress,” says Margaret Stock. Stock is a distinguished immigration lawyer who has helped frame a lot of the understanding around the legal status of immigrants among those serving in the US military. Stock is herself a veteran, having retired as a lieutenant colonel in the Military Police Corps of the US Army, and a former instructor at the US Military Academy at West Point. She's also written in depth on the issue of birthright citizenhship. 

“They didn’t trust politicians and they didn’t trust Congress,'' Stock says "So they thought if they put the principle into the Constitution, then it would be harder for Congress, or a president, to change it.”  

It’s an ugly history, but Stock says “I'm not sure he [Trump] is aware of that. But the idea was that they’d take a whole group of people and make them ineligible for citizenship, on the basis of their race. And that concept has recurred at different times in American history, but the whole point of the 14th Amendment was to say no, we’re just going to have one rule for everybody, regardless of their race.”

Despite that, efforts were made in the late 19th century to deny citizenship to babies born here to Asian parents, and in particular, Chinese immigrants.

Many Native Americans were also excluded from citizenship through 1924, on the principle that they belonged to their own sovereign entities within US territory.

Multiple proposals have been floated to end birthright citizenship over the last three decades or so. Some require a new constitutional amendment, while others attempt to re-define the meaning of the 14th Amendment.

Some of the proposals have insisted that both parents must be citizens or legal residents at the time of each child’s birth.

Some are even retroactive, meaning that existing US citizens would have to prove they were entitled to their citizenship, by proving the legal status of their parents.

“Interestingly,” says Stock, “under some of [these proposals], Donald Trump himself wouldn’t be eligible for citizenship, let alone be able to run for the presidency.” Stock says Trump’s mother was an immigrant from the UK and some proposals to reinterpret the 14th Amendment would therefore prevent people like Trump from acquiring American citizenship at birth.

It’s not clear which plan Trump would like to see.

Stock highlights one problem with scrapping the principle of birthright citizenship. It would end the fundamental American principle of equality, that “everybody starts off life the same… We don’t have different social castes. Essentially if you got rid of this, you get a very complicated, very expensive, social caste system, where some people are more equal than others.”