BIRTHRIGHT CITIZENSHIP AND THE 14TH AMENDMENT

When presidential candidate Donald Trump revealed that his "immigration plan" substantially consisted of deporting 11 to 14 million illegal immigrants, he pointedlly included "anchor babies" - a pejorative term used to identify babies born in the U.S. to parents illegally residing here. The resulting discussion quickly focused on the Citizenship Clause of the 14th Amendment to the U.S. Constitution, which states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are cittizens of the United States and the state wherein they reside."

The 14th Amendment was ratified and adopted on July 9, 1868. It is considered to be a reconstruction amendment adopted after the Civil War to address the equal protection and rights of former slaves. The Citizenship Clause, one of 5 in the amendment, establishes "Birthright Citizenship," which has its roots in English Common Law. In 1608, in a case referred to as "Calvin's Case," the English Court established that: "A person's status was vested at birth - a person born within the King's dominion owed allegiance to the sovereign, and in turn, was entitled to the King's protection."

Over time, the interpretation of this concept became quite controversial. Section 5 of the 14th Amendment does state that "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." Several attempts at "clarification" were initiated. In 1873 the Supreme Court decided that "subject to its jurisdiction" was intended to exclude children of "ministers, consuls of foreign states born within the United States." However, in United States v. Wong Kim Ark (1898) the Court confirmed the principle when it held  that any person born in the United States, even from foreign born parents, was an American citizen under the 14th Amendment.

The contested interpretation has been whether Birthright Citizenship is applicable to children born in the U.S. of illegal alien parents. Both Democrats and Republicans have introduced legislation aimed at narrowing the application of the Citizen Clause, and to reduce the impact of so-called "maternity tourism." According to the Pew Hispanic Center approximately 7.5% of all births in the U.S. (about 300,000 births per year) are to unauthorized immigrants. Under current law these children are now U.S. citizens. It is estimated that roughly 4.5 million children claim citizenship because of birthright.

Mr. Trump does not believe they have American citizenship, and he wants to deport them with their families. He, mistakenly, believes that Birthright Citizenship is the biggest magnet for illegal immigration. Research suggests that jobs and economic opportunity are most dominant. Nevertheless, he is reaching a receptive audience with a conversation that started soon after the 14th Amendment was adopted. Deporting American citizens won't be an option. Two fairly recent Supreme Court cases (1967 and 1980) have held that the Citizenship Clause bars Congress from revoking citizenship. To legally change the interpretation of this clause would presumably require a constitutional amendment or constitution-proof legislative action. It took the 27th Amendment 202 years to be ratified. Amending the Amendment may not be a rational option. Some experts do believe that legislative action is not only warranted, it falls within the purview of the Amendment. Those who want to change the interpretation of the birthright citizenship clause will need to focus their efforts there.