GOOD TO KNOW: What Did the 14th Amendment Congress Think about “Birthright Citizenship”?

The record of the debate in 1866 is illuminating. . . .

This exchange supports very strongly the conclusion that the Citizenship Clause was intended to mean the same as the Civil Rights Act of 1866—excluding children born in the United States to foreign nationals (that is, to resident aliens). . . .

A considerable body of scholarship supports the view that the Citizenship Clause does not compel birthright citizenship, and that the current practice could be corrected by legislation, pursuant to Congress’ power under Section 5 of the 14th Amendment and Article I, Section 8, Clause 4. Contrary to the assertions of some (including the editorial page of the Wall Street Journal and Ben Domenech, publisher of The Federalist), amending the 14th Amendment is not required. . . .

The U.S. Supreme Court has never ruled in favor of birthright citizenship for the children of illegal immigrants. The oft-cited United States v. Wong Kim Ark (1898) involved the offspring of a Chinese couple present in the United States legally. And the frequently cited language from Plyler v. Doe (1982)—a 5 to 4 decision written by the activist Justice William Brennan, hardly a strong authority—is dicta contained in a footnote!