Can Birthright Citizenship be Repealed?

By Adjunct Professor Don Warner

This op-ed originally appeared in the Sept. 14, 2015 edition of the Los Angeles Daily Journal.
Several candidates for the Republican nomination in the 2016 presidential election have adopted as a policy the elimination of so-called "birthright citizenship" for children of illegal aliens born in this country. How could this be accomplished? To find out, let’s engage in a thought experiment.

The first barrier, as almost everyone agrees, is this language in the 14th Amendment to the U. S. Constitution: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

So we'll pass an amendment modifying that language. Can a subsequent amendment amend an amendment? The 21st Amendment repealed the 18th entirely, ending the "experiment" of alcohol prohibition. So, no problem here.

Our new amendment could modify the language in Section 1 of the 14th to add a proviso: "Provided that, no person both of whose parents, at the time of such person's birth, were…” Illegal aliens? Undocumented workers? Vague and ambiguous. Let's use one of a drafter's best tricks, negative language: "were not legally present in the United States."
But another issue emerges. What happens to these kids if they are not U. S. citizens? Are we creating a class of stateless persons? Let's check Mexican law, just for instance. Under Mexican law, if the parents are Mexican citizens, the child is as well, even if born in the U. S. Ireland is the same. Maybe we can assume that is the case in general. But Mexican law seems to speak only to the child of two Mexican citizens. What if one parent is Guatemalan? You're on your own, kid.

We can't do anything about citizenship in a country other than the U. S., anyway. Maybe we can offer a compromise — citizenship in American Samoa or Puerto Rico?

This is more complicated than it seemed, starting out. It’s not just the 14th Amendment. Let’s consider U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). Wong was an anchor baby. Born in San Francisco. Both his parents were "subjects of the Emperor of China," but ineligible to naturalize and become U. S. citizens because of the Chinese Exclusion Act. When he was 21, Wong took a trip to China, presumably to visit relatives. When he came back, he was excluded.

Wong’s case found its way to the U.S. Supreme Court, where the government lawyers argued that the 14th Amendment was passed to reverse Dred Scott v. Sandford, 19 How. 393 (1857), which held that no African-American could ever be a citizen. The purpose was not, they said, to create anchor babies (although they probably didn't use that term).

Justice Horace Gray was, like many in those days, extremely long-winded in writing his opinion, but there's some meat there. First, our concern about creating a class of Philip Nolans, condemned to wander forever from one port of entry to another, is relieved: "[A] person who is born on the ocean is subject to the prince to whom his parents owe allegiance." So at least under U. S. law, the former but now excluded birthright citizens will have a home.

And Gray disposed of the it-was-just-to-reverse Dred Scott ploy: "To hold that [the 14th] excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or others of European parentage." So will we have toss out all those (white) people, too?

But will our amending language do the job? The Wong Kim Ark decision made it clear that the language of Section 1 of the 14th is declarative of existing law; birthright citizenship was the rule in the U. S. when the amendment passed. Indeed, Gray went all the way back to English common law, to something called "Calvin's Case," decided in 1608. So birthright citizenship's not just the existing rule, it's an "ancient" rule. Can an "ancient," pre-existing rule stand up in the face of our planned amendment? Probably not. The Constitution, as amended, should control.

It ought to be enough. But bulletproof?