Professor Richard Epstein, a noted legal scholar, is fighting a solitary battle against the prevailing interpretation of the Citizenship Clause of the Fourteenth Amendment. He maintains that a child born in the United States to undocumented parents does not automatically acquire citizenship – a position the Supreme Court has already dismissed.
Historical and textual basis
The Fourteenth Amendment, ratified in 1868, declares: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens." Epstein concentrates on the phrase “subject to the jurisdiction,” arguing that it demands absolute allegiance to U.S. authority – something he says illegal immigrants and temporary visitors cannot provide because of their ongoing obligations to another nation.
He points to the Naturalization Acts of 1790 and 1795, which limited citizenship to “free white persons,” and to congressional debates in which Senator Jacob Howard warned that the amendment would exclude “aliens” and “foreigners.” Epstein also invokes the maxim ex turpi causa to contend that children of undocumented parents should not profit from their parents’ unlawful status.
Scholarly and judicial rebuttal
Law professors such as John Yoo of UC Berkeley argue that Epstein overstates the weight of individual lawmakers’ statements and note that the states ratifying the amendment did not share his restrictive view. The Supreme Court’s 1898 decision in United States v. Wong Kim Ark affirmed a broad reading of birthright citizenship, holding that children of lawful residents are citizens regardless of parental origin. Epstein dismisses that precedent as “flatly wrong,” noting that the parents in Wong Kim Ark were legal residents, not undocumented immigrants.
More recent jurisprudence has continued to interpret “jurisdiction” expansively, a trend reaffirmed in the recent case Trump v. Barbara, which upheld the inclusion of all persons within U.S. territory.
Implications of overturning birthright citizenship
If the Constitution’s citizenship clause were narrowed, the consequences could be severe. Administrative systems would face new burdens, a segment of the population could become stateless, and families might be split if children retained citizenship while parents were deported. Epstein concedes these risks but insists that any remedy should come from legislation, not from a reinterpretation of the Constitution.
Although his position remains marginal among constitutional scholars, it highlights the enduring complexity of the Fourteenth Amendment. As three Supreme Court justices observed in a dissent that mirrors Epstein’s view, the issue continues to be a flashpoint in America’s immigration and identity debates.