U.S. Supreme Court to examine birthright citizenship Wednesday

The case will center around the 14th Amendment, a provision that conferred citizenship and voting rights to freed African Americans after the Civil War. The amendment would go on to become the bedrock for immigration law throughout the country.

The 14th Amendment reads: “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.”

Legal analysts have said that the phrase “subject to the jurisdiction thereof” means more than being physically present in the United States.

Ilan Wurman, a law professor at the University of Minnesota, said English common law – of which the United States’ founding documents were modeled – should be understood to only grant protections to immigrants with permission to be in the United States by a sovereign leader.

“Permission was relevant to protection and protection, as it turns out, was relevant to jurisdiction,” Wurman said. “The sovereign operated on children through the parents, which, of course, makes sense because parents have a natural authority over their children.”

Justices on the high court will also need to reckon with precedent by previous courts, like in U.S. v. Wong Kim Ark. In 1898, the Supreme Court said a child born to Chinese parents could be considered a U.S. citizen under the language of the 14th Amendment.

The opinion from the justices created three categories of individuals who would be excluded from automatic U.S. citizenship, despite being born in the United States: children of diplomats, children born of invading armies and children born to American Indians.

“The question with Wong Kim Ark is whether that three item list is exhaustive and complete or whether there are other categories of people that might also be excluded,” said Eric Wessan, solicitor general for the Iowa office of the Attorney General.

Lawyers arguing in favor of allowing birthright citizenship to all those born in the United States have appealed to the country’s long history and the decision in Wong Kim Ark. The lawyers have also pointed to fears of chaos if various states adopted different policies for who can be conferred citizenship.

“It would threaten to replace a long-established and eminently workable rule – around which a multitude of laws, systems, and policies have been shaped for generations – with an unclear, contingent, and chaotic experiment in exclusion from our national community,” lawyers wrote.

The court will hear arguments in the case on Wednesday and is expected to make a decision by June.

“It seems unlikely that the 14th Amendment was intended to serve as a magnet for birth tourism or to reward illegal re-entry,” Wessan said.