By Archbishop Thomas Wenski - The Archdiocese of Miami
In the early days of his second administration, President Donald Trump issued Executive Order No. 14156, which would make ancestry (with at least one parent who is a U.S. citizen or a legal resident) a criterion for citizenship. This order goes against more than a century of legal precedent and thus has invited immediate legal challenges that in recent weeks have made it to the Supreme Court for a final ruling.
Birthright citizenship affords citizenship to all persons born on U.S. soil, regardless of their parents’ status. In the United States, birthright citizenship is guaranteed by the 14th Amendment to the Constitution. Specifically, it states that “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.”
Birthright citizenship, also called jus soli (the right of the soil), has its origins in English common law and has helped integrate new generations of Americans into our society. Here in South Florida, as elsewhere in the U.S., we celebrate the achievements of those who proudly call themselves “first-generation Americans.” In celebrating their accomplishments, we honor the sacrifices of their parents, who migrated to this country in search of freedom and opportunity, and we also acknowledge the upward mobility that a free society affords those willing to work hard.
Most countries in the Americas have birthright citizenship. The countries of this hemisphere have historically encouraged migration and saw citizenship as the vehicle for quickly integrating the newcomer into their societies. The one exception is the Dominican Republic, where historic xenophobic racism toward Haitians conspires to deny citizenship to the children of Haitians born on Dominican soil.
In Europe, many countries, for example, Italy, do not have birthright citizenship but rather citizenship based on ancestry (jus sanguinis). So, in those countries, there is no equivalent of “first-generation Americans” but rather “second-generation migrants.” This can lead to the creation of a caste system, one that the 14th Amendment sought to avoid by granting citizenship to former slaves and their children, as well as to those “subject to the jurisdiction” of the United States. Jim Crow laws, of course, frustrated for almost a century the 14th Amendment’s aim to eliminate legal inequities and promote inclusivity.
Nevertheless, the 1898 Supreme Court case United States v. Wong Kim Ark clarified that children born in the U.S. to immigrant parents are citizens, regardless of their parents’ immigration status.
While I am not a constitutional lawyer, the plain language of the 14th Amendment is clear: Citizenship is available to all those born in the U.S. and subject to its jurisdiction. Irregular, or “unauthorized,” migrants are indeed subject to U.S. jurisdiction. They have to pay taxes, and if they commit crimes, they can be arrested, judged, sentenced and deported. Those not subject to the jurisdiction of the U.S. states – and thus ineligible for citizenship — are, for example, children of diplomats living in the U.S. Generally, diplomats have immunity that protects them even from paying traffic tickets — thus they are not subject to the jurisdiction of the United States.
“Second-generation migrants” can become essentially stateless and may beget third-generation migrants who, also stateless because they are denied the rights and privileges of citizenship, become unassimilable into their host societies. And people who are citizens of “nowhere” have “nowhere” to be deported to. This would end up creating a vulnerable, exploitable and marginalized underclass, as bad or worse than the underclass created by Jim Crow legislation, which denied civil liberties and rights to Blacks in this country. We have yet to fully recover from the harms done to the body politic by Jim Crow and its legacy. We should learn from history and not repeat its mistakes.
The justices should rule in favor of jus soli – this would affirm the dignity of innocent children and be consistent with our democratic traditions as well as with the plain language of the 14th Amendment.
