There has been much hullabaloo on the GOP side of the 2016 race about birthright citizenship, specifically whether or not the children of undocumented immigrants are American citizens.
The U.S. has practiced “birthright citizenship” as common law since even before the Union was a union. It was codified in the U.S. Constitution in the 14th Amendment, specifically as a reaction to the Supreme Court decision in Dred Scott v. Sanford*. Before then there really was no specific U.S. policy on citizenship, or for that matter, immigration.
Here’s what it says in Section 1, the relevant section:
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.
Within the text of the amendment, there seems to be a built-in mechanism for exceptions to be made, specifically the phrase “and subject to the jurisdiction thereof.” Some conservatives, like Mark Levin, have argued that this excludes those not in the country legally.
Really, that clause was inserted to exclude both children of diplomats and Native Americans, who at the time were seen as loyal to their own tribes over the U.S. and an “enemy” within “our” borders. Neither of these groups of people were seen as being beholden to or protected by American law.
Yet, immigrants and foreign tourists are very much subject to U.S. jurisdiction. If immigrants or visitors to this country breaks our laws, they are subject to them. Thus, any rational reading of the clause sees that this clause applies to them as well.
Still, unauthorized migration has never been tested in the Supreme Court though, especially if the GOP loses in 2016, it likely will be in the future.
*Author’s Note: To refresh your memory, Dred Scott was a slave who sued for his freedom after his owners took him to territories where slaves were outlawed. SCOTUS ruled that free blacks were not American citizens. Both the 14th Amendment and the Civil Rights Act of 1866 were responses to this decision.