How can birthright citizenship be eliminated

 To address how birthright citizenship can be eliminated, we must examine the relevant sections of the Constitution, historical context, and related court cases.

Relevant Sections of the Constitution:

1. 14th Amendment, Section 1: This is the primary constitutional provision related to birthright citizenship. It states: "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." This clause establishes the principle of jus soli (right of the soil), granting citizenship to nearly all individuals born on U.S. soil.

2. Article V: This article outlines the process for amending the Constitution. To eliminate or alter birthright citizenship, an amendment to the 14th Amendment would be required. This process involves either a two-thirds majority vote in both houses of Congress and ratification by three-fourths of the state legislatures or a constitutional convention called by two-thirds of the states.

Historical Context:

The principle of birthright citizenship was solidified by the 14th Amendment, ratified in 1868, primarily to grant citizenship to formerly enslaved individuals after the Civil War. The phrase "subject to the jurisdiction thereof" has been a point of debate, particularly regarding whether it applies to children of undocumented immigrants or foreign nationals.

Relevant Court Cases:

1. United States v. Wong Kim Ark (1898): This landmark Supreme Court case affirmed the principle of birthright citizenship under the 14th Amendment. Wong Kim Ark, born in the U.S. to Chinese parents who were not U.S. citizens, was denied re-entry into the country after a trip abroad. The Court ruled that he was a U.S. citizen by virtue of his birth on U.S. soil, establishing a precedent for interpreting the 14th Amendment broadly [1][3].

2. Plyler v. Doe (1982): While not directly about birthright citizenship, this case reinforced the idea that the 14th Amendment applies to all persons within U.S. jurisdiction, regardless of immigration status. It struck down a Texas law denying public education to children of undocumented immigrants, emphasizing the inclusive nature of the amendment [4].

3. Elk v. Wilkins (1884): This case addressed whether Native Americans born on tribal lands were U.S. citizens under the 14th Amendment. The Court ruled that they were not automatically citizens because they were not "subject to the jurisdiction" of the United States in the same way as others. This decision highlighted the complexity of the "jurisdiction" clause [2].

How Birthright Citizenship Could Be Eliminated:

1. Constitutional Amendment: The most definitive way to eliminate birthright citizenship would be to amend the 14th Amendment. This would require significant political consensus, as outlined in Article V of the Constitution.

2. Legislation and Legal Challenges: Some have argued that Congress could pass legislation redefining the "subject to the jurisdiction thereof" clause to exclude certain groups, such as children of undocumented immigrants. However, such legislation would almost certainly face legal challenges and require Supreme Court interpretation, given the precedent set by Wong Kim Ark [1][3].

3. Judicial Interpretation: A shift in the composition of the Supreme Court could lead to a reinterpretation of the 14th Amendment. If the Court were to narrow the definition of "jurisdiction," it could potentially limit the scope of birthright citizenship without a constitutional amendment [5].

In conclusion, eliminating birthright citizenship would require either a constitutional amendment or a significant reinterpretation of the 14th Amendment by the courts. Both paths involve substantial legal and political challenges, given the historical and legal precedents supporting birthright citizenship.

Sources

1 The United States Supreme Court Edited by Christopher Tomlins

2 On the Constitution of the United States by Joseph Story

3 U.S. Constitution for Everyone by Mort Green

4 The Making of America by W. Cleon Skousen

5 The Constitution of the United States of America as Amended. Unratified Amendments. Analytical Index by Henry Hyde