The Constitution of the United States
Fourteenth Amendment
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What we call “Birthright Citizenship” is contained within the first sentence:
All persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The legal term for what is commonly called Birthright Citizenship is “jus soli” … Latin for “right of soil”. The legal term “jus sanguinis” meaning “right of blood” is another way that many countries define Birthright Citizenship. Only jus soli citizenship is guaranteed by the Constitution of the United States. Jus sanguinis citizenship is covered by Sections 301 and 309 of the Immigration and Nationalization Act (INA).
Donald Trump on Birthright Citizenship
On December 8, 2024, President-elect Donald Trump joined Kristen Welker for an interview on Meet the Press.[1] Kristen asked him about his plans regarding Birthright Citizenship:
0:00:37
Apparently[2], the President-elect does not understand the meaning of “Birthright Citizenship” expressed in the 14th Amendment (jus soli). Did you catch it? He said”
Do you know if somebody sets a foot, just a foot, one foot, you don’t need two, on our land, “Congratulations you are now a citizen of the United States of America.”
That is not what the 14th Amendment says. If “setting … one foot … on our land” made one a U.S. citizen, there would be no such thing as an “undocumented immigrant”. No documentation would be required and all visitors would automatically be citizens. Their immigrant status would end the moment they stepped off the boat or plane … or crossed the border. The number of U.S. Citizens would be much larger than the commonly estimated 300+ million.[3] I think the “once and future” President has “Birthright Citizenship” confused with the “equal protection” clause at the end of Section 1 of the 14th Amendment:
… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Use of the word “person” rather than “citizen” shows that the Constitutional guarantee to equal protection under the law does not require citizenship, just personhood.[4]
We Are Not Alone
President-elect Trump made another misstatement that may simply be the result of his misunderstanding of Birthright Citizenship:
You know we’re the only country that has it.
According to Wikipedia, there are 26 countries that have the jus soli form of “Birthright Citizenship” with no restrictions and a few with restrictions related to the children of parents working for their own governments:
- Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia, Cuba, Dominica, Ecuador, El Salvador, Fiji and Tuvalu, Granada, Guatemala, Guyana, Honduras, Jamaica, Lesotho, Mexico, Nicaragua, Pakistan, Panama, Paraguay, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, Uruguay, and Venezuela have no restrictions.
- Chad requires the person to choose between Chadian citizenship and that of their parents by the age of 18. Peru requires registration at the same age. Costa Rica requires registration before the age of 25.
- Chile’s Constitution grants nationality to “those born in Chilean territory, with the exception of the children of foreigners who are in Chile in service of their government, and the children of transient foreigners, all of which, however, may opt for the Chilean nationality.”
- Brazil, Canada, and the United States exclude the children of diplomats and similar agencies of the parents’ country. Additionally, the United States excludes children born to enemy forces engaged in hostile occupation of the country’s territory.
On Day One? Really?
President-elect Trump seems to put a lot of faith in the power and scope of Presidential Executive Orders. Executive Orders are powerful, but not as powerful as those of the president of a privately owned company. They can be broad in scope, but not without limit. The United States of America is not a business. Presidential Executive Orders can neither obliterate nor even modify the Constitution nor its amendments. Only a new amendment can do that. The clearest example of that is the 21st Amendment. It’s passage was needed for overturning the 18th Amendment.
During the midterm elections within his first administration … with regards to eliminating Birthright Citizenship …, President Trump told Axios:
It was always told to me that you needed a Constitutional amendment. Guess what? You don’t.
In his recent interview on Meet the Press, he told Kristen Welker:
Well, we’re going to have to get it changed. We’ll maybe have to go back to the people. But we have to end it.
President-elect Trump seems to have learned something that President Trump didn’t know.[5]
It Ain’t Easy
Ultimately, “going back to the people” means passing a new amendment to the Constitution. Article V of the Constitution defines the procedure for adding Amendments.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Amendments can be proposed by either 2/3 of both chambers of Congress or by a convention of the legislatures of 2/3 of the states. (A convention of state legislatures has never been used and probably never will be.) For all practical purposes, amending the Constitution begins in Congress. Either the House or the Senate can propose and vote on a potential amendment. (Passage in the House requires at least 290 votes. Passage in the Senate requires at least 67 votes.) When both chambers have delivered their required 2/3 passages, the amendment moves to the states for ratification.
Three-quarters of the states (currently 38) must ratify the proposed amendment in order for it to be added to the Constitution. This can take a long time. It took 202 years, 7 months, and 10 days for the 27th Amendment to ratified. (That was the worst case. The average has been 3 years.)
Barring an insurrection and/or overturn of the Constitution, the President-elect’s last term will end on January 20, 2029. The 119th Congress will end on January 3, 2027. Passage and ratification of an amendment to the Constitution that overturns Section 1 of the 14th Amendment is about as likely as the 31st of February.
I’m Taking the 14th
Prior to the passage and ratification of the 14th Amendment, United States citizenship was informally based to jus soli through “common law” and jus sanguinis through “civil law“, but was not encoded in any nation-wide law. Barring court action related to specific cases, if you looked like a citizen, walked like a citizen, and talked like a citizen, then you probably were a citizen.[6] Seven generations of my family had lived in what is now the United States of America before I was born. The first and second generations were citizens under these common and civil law assumptions. The 14th Amendment was ratified on July 9, 1868 formalizing jus soli citizenship. The third generation of my family was the first who had legal documentation of their U.S. citizenship … the records of their places of birth.
The sections of the Immigration and Nationality Act (INS), 301 and 309, that codified jus sanguinis nationalization into U.S. law did not go into effect until June 27, 1952 and December 24, 1952 respectively. I was born in 1945. Fortunately, my birth certificate indicates that I was born in York, Pennsylvania. I have no interest in dealing with U.S. Citizenship and Immigration Services (USCIS).
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Notes
[1]
If you’d like to view the entire interview, here it is:
1:37:16
[2]
I say “Apparently” because I don’t know whether he was exaggerating (aka lying), is ignorant of the true basis of Birthright Citizenship in the U.S., … or is just plain stupid.
No matter how one defines “intelligence”, half the people in the country are below average. While ignorance is not stupidity, it is my less than humble opinion that choosing to remain ignorant … especially when the information (e.g., the text of the 14th Amendment) is readily available … is a sign of stupidity. If you’re going to oppose part of the Constitution, you should know what you’re opposing … and, be able to explain your opposition clearly.
President-elect Trump’s explanation of “Birthright Citizenship” in the Constitution leads me to believe that either he is a member of the lower half of the “intelligence” distribution … or, he believes that most of his supporters belong there. Of course, both could be true.
[3]
In 2023, there were an estimated 66.5 million international visitors to the United States. That number is estimated to have increased to 77.7 million in 2024. Some, perhaps many, of those visitors may have visited us before and, therefore, may already be citizens based on the President-elect’s theory of Birthright Citizenship. But, if only 15% were visiting for the first time, the number of new citizens would exceed the estimated 11 million undocumented immigrants who are here illegally.
[4]
I am not a lawyer, but I can read. (I guess that makes me a Constitutional “textualist”.) There is a clear distinction between the words “citizen” and “person“.
A Constitutional “originalist” might argue about what those who passed and ratified the 14th Amendment originally intended, but I have neither a time machine nor a Ouija Board. I prefer taking the words at face value.
[5]
Perhaps Ali Velshi and his guest, Julia Ainsley, back in 2018 played some small part in educating then President Trump.
[ 0:01:29 ]
[6]
If the “if you looked like a citizen, walked like a citizen, and talked like a citizen, then you probably were a citizen” clause sounds vaguely familiar, it’s because I couldn’t resist the temptation to paraphrase what’s commonly called the “Duck Test“.
My Less Than Humble Opinion 
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