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Vivek Ramaswamy, seeking to ride the nativist tide that helped Donald Trump secure the Republican presidential nomination in 2016, is calling for an end to birthright citizenship. Ramaswamy is far from alone in his party on this issue, it has become a common position to take in the GOP as of late. Representative Matt Gaetz (R-Fla.) introduced a bill to put an end to the practice and Donald Trump has pledged to eliminate birthright citizenship via unilateral executive action on day one of his second term should he be re-elected in 2024. The reality is that, barring a constitutional amendment which repeals or alters Section 1 of the 14th Amendment, Republicans have no way to lawfully end or restrict birthright citizenship.
The concept of citizenship by one's place of birth dates back to the 17th century in the United Kingdom before it was united. King James VI of Scotland inherited the English throne in 1603 upon the death of the unmarried and childless Elizabeth I. However, England and Scotland remained distinct nations even though they now had the same king. The crown was unified but said crown's kingdoms remained apart in all other respects.
In looking to unite his kingdoms but being unable to do so unilaterally via his executive powers, James sought to work with England's legislature to advance unification. After years of being rebuffed by Parliament, it became clear to James that in order to advance his vision of a unified kingdom further he'd need to find other ways to fulfill his dream.
In 1608, James found one such opportunity in the form of a Scottish infant named Robert Calvin who was in line to inherit an English estate. The issue was that English law at the time disallowed Scottish citizens from owning land in England. The ultimate result of the litigation that followed was that, under the common law of the courts, any Scott born after the union of crowns was now considered an English citizen just as if they were born in England itself.
The logic in holding Calvin to be an English citizen was that he was born in territory that made him immediately subject to the jurisdiction of the King of England. The court held that only those not subject to the jurisdiction of the crown when born, such as children of foreign ambassadors who enjoy their parent's diplomatic immunity, should be excluded from the rights of citizenship conveyed by the fact that they were born within territory held by the Crown.
The United States did not carry over this element of the common law from the United Kingdom, as was infamously illustrated by the Dred Scott decision where the Supreme Court held that the Constitution did not confer citizenship to Black people of African dissent. Even if they were born here and were free, Black people could not be American citizens. The Dred Scott decision is why Section 1 of the 14th Amendment, adopted in 1866, was necessary. This amendment overturned a Supreme Court precedent that rejected the common law principle of birthright citizenship.
The language of the amendment is also unmistakably clear in how it adopts the board meaning of birthright citizenship in the same manner as the English court did in Calvin's case, declaring that, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
In reviewing this language, the Supreme Court in 1982 noted that, "No plausible distinction with respect to 14th Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." As such, there is no plausible legal argument that the children of illegal immigrants are exempt from birthright citizenship, and only a constitutional amendment will change that, just as it did when we overrode the court's dreadful Dred Scott decision. With an amendment requiring three-fourths of the states to ratify it, there is clearly no foreseeable future where birthright citizenship will be restricted.
Nicholas Creel is an assistant professor of business law at Georgia College & State University.
The views expressed in this article are the writer's own.
