Is it time to revisit Birthright Citizenship?
The 14th Amendment may be subject to interpretation
Editor’s Note: Opinions expressed by contributors to the Westside Observer are the author’s point of view. They do not reflect the position of WSO. As always, we welcome opposing commentary submissions.
• • • • • • • • • • November 2024 • • • • • • • • • •
There has been controversy surrounding President Donald Trump’s executive order (EO) issued on January 20, 2025, which limits birthright citizenship. In summary, the EO states that children born to parents who are unlawfully in the US may no longer be considered citizens.
On the surface, this seems like a flagrant repudiation of one of America’s long-held traditional views — that anyone born on American soil is a citizen. However, there is a legitimate need to revisit the intent of the 14th Amendment in its modern context. Our current immigration and border crisis was not fathomable when the 14th Amendment was signed in 1868.
Is it due for revision or a re-interpretation by the Supreme Court?
The 14th Amendment was ratified in 1868, granting newly freed slaves full citizenship status. The birthright clause states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The seemingly straightforward interpretation suggests that anyone born on US soil is, by right, an American citizen. However, the second part of the clause has the additional condition “and subject to the jurisdiction thereof,” which makes the birthright clause less straightforward. The freed slaves, born in the United States, were also subject to the laws and regulations of the United States, making them “subject to the jurisdiction.”
This interpretation may have been satisfactory at the time, but the term “illegal immigration” did not exist back then. Illegal immigration is a relatively recent phenomenon that has challenged the 14th Amendment. Did it intend to grant citizenship to children of illegal immigrants? The first clause has two parts, and technically, in order to satisfy citizenship requirements, both parts of the statement must be true. Born in the United States AND subject to the jurisdiction thereof.
Many immigrants attempted to cross the border ... I responded to many such calls. Being fluent in Spanish, I was frequently used as a resource. In July of 2003, our engine received a call for a pregnant woman found at the Tecate port of entry in east San Diego county. We responded to a woman found by border patrol no more than a few hundred feet inside the US ...”
Are persons who enter the United States illegally subject to the jurisdiction of the United States? Therefore, is citizenship guaranteed by the 14th Amendment to these children, or is it not applicable since the parents violated immigration law and are nationals of another country?
This is a new challenge for the 14th Amendment, and we need an updated ruling for how it should apply in modern times. If necessary, a corrective amendment should be legislated to provide executive guidance.
The most often-cited ruling as a basis for birthright citizenship policy is US vs. Wong Kim Ark in 1898. Wong Kim Ark was the son of Chinese nationals (or “subjects of the emperor of China”) and was born in San Francisco in 1873. His parents had “established a permanent residence in San Francisco“ and the US and “were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the emperor of China.” Wong Kim Ark made two trips to China, one in 1890 and one in 1894. After the first trip, he was granted re-entry into the US because he was born in the United States and, therefore, a citizen. After the second trip, he was denied entry into the United States on the grounds of the Chinese Exclusion Act, which forbade the immigration of Chinese immigrants, especially laborers, into the United States. The court case adjudicated whether the Chinese Exclusion Act applied to Wong Kim Ark. In a 6 to 2 ruling, the US Supreme Court decided that the Chinese Exclusion Act did not apply to him; he was a citizen and could not be denied entry.
The parents of Wong Kim Ark were lawful residents of the United States. They were not diplomats of China, nor were engaged in any business on behalf of the emperor of China. They were, however, “subjects of the Emperor of China” but this is an archaic term for citizens of China.
Nowadays, we have a litany of new immigration challenges and ways to exploit birthright citizenship loopholes that were never consistent with the intent of the 14th Amendment. Birth Tourism and the citizenship status of children of illegal immigrants pose new challenges that need both updated court rulings and updated legislation, both of which can be accomplished while leaving the original US vs. Wong Kim Ark (1898) ruling intact. I have personal experience with the difficulties of birthright citizenship loopholes from my time as a firefighter for Cal-Fire San Diego in 2003.
In 2003, I was working for CalFire (then California Department of Forestry or CDF) in San Diego County. I was assigned to Potrero, a small rural community about 40 miles east of downtown San Diego on State Highway 94. It is the most southerly state fire station in California, two miles from the US-Mexico border. At the time, the border wall was still incomplete, with long sections of open border secured by nothing more than a cattle fence. It was very common for our engine to respond to medical emergencies there. Many immigrants attempted to cross the border, sometimes in high heat conditions, with little or no water. Often, this would lead to heat exhaustion or, in the worst cases, heat stroke, which, left untreated, is fatal. I responded to many such calls. Being fluent in Spanish, I was frequently used as a resource. In July of 2003, our engine received a call for a pregnant woman found at the Tecate port of entry in east San Diego county. We responded to a woman found by border patrol no more than a few hundred feet inside the US.
She was having contractions about 2 minutes apart, which meant delivery was imminent. Paramedics arrived quickly, coming from Campo, a rural community that had the nearest ambulance. The senior paramedic made the decision to deliver the baby in the back of the ambulance and called for a helicopter-based medic. The ambulance was parked about 300 feet north of the actual border on Tecate Road, the main route in and out of Tecate, US. Everyone was kicked out of the back of the ambulance except his partner and me. I was told that I needed to remain and translate.
The woman was in her early 20s and from a Central American country (maybe Mexico, Guatemala, or further south). Her contractions were becoming more frequent as I told her to push. After a few moments, a baby appeared, blue at first, but on stimulation, immediately turned pink and started breathing. Soon after, the umbilical cord and placenta were delivered. After this, our engine crew was directed to wet down an adjacent field to prepare for a helicopter landing. The helicopter soon appeared, landed, and transported the mother and child to the nearest available hospital in the vicinity of San Diego.
As we returned to the station, I wondered aloud what would happen next. By my interpretation (and most people’s interpretation at the time), the baby is a US citizen, as he was born on US soil. However, the mother was here illegally, having just come across the border and detained by US Border Patrol. According to law, she was here illegally and is obligated to be deported back to Mexico. However, her child is a citizen, so she has the right to remain. This challenge to modern immigration law has no clear way forward.
Furthermore, what is the total cost burden to the taxpayer, and does the US have the right to bill the country of origin of the immigrant for cost of services rendered? Advanced Life Support treatment in an ambulance would cost about a thousand dollars and a helicopter flight with a nurse and flight medic would cost about 10 thousand dollars in 2003 (much more today). To be clear, once border patrol agents or any first responder encounters anyone having a medical emergency, they are obligated to provide care until relieved by someone with higher medical authority, so it would have been against policy to return the pregnant woman to Mexico without providing for the continuance of care, which would have been nearly impossible to do in that situation.
Regardless, it could be argued that whichever course of action is taken (return the mother and child to Mexico or allow them both to stay in the US), some violation of the law was occurring.
This sort of situation was not contemplated when the 14th Amendment was ratified and provides an opportunity for abuse of the birthright citizenship interpretation, in which illegal immigrants can have babies born in the US and use that as a means to claim citizenship for their child and thus be exempt from deportation.
Furthermore, this is also a security vulnerability in which nationals from foreign countries, even adversarial ones, can engage in birth tourism and claim citizenship for their children.
Immigration policy has radically changed over the last 160 years since the 14th Amendment was ratified and even in the last 130 years since the Wong Kim Ark ruling. Birthright citizenship policy needs to be clarified in a modern context, and it is not wrong to revisit rulings, legislation, and policy and update it to make it more applicable to modern times.
Stephen Martin-Pinto is a property owner who lives on the Westside.
May 2025
