The 14th Amendment's Text and Interpretation
Renowned legal scholar Richard Epstein is waging a solitary battle against the widely accepted interpretation of the 14th Amendment's Citizenship Clause, arguing that children born in the U.S. to undocumented immigrants do not automatically qualify for citizenship, a position recently rejected by the Supreme Court.
Most Americans learn that the 14th Amendment grants citizenship to all born on U.S. soil. This principle, known as ius soli, contrasts with systems like those in Europe, where ancestry (ius sanguinis) often determines citizenship. Epstein's book, *The Myth of Birthright Citizenship*, disputes this consensus, asserting that the amendment's framers intended a narrower scope.
Historical Debates and Modern Implications
The 14th Amendment, ratified in 1868, states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens." Epstein focuses on the phrase "subject to the jurisdiction," claiming it requires absolute allegiance to U.S. authority, something he argues illegal immigrants and temporary visitors cannot provide due to their existing national obligations.
He cites the Naturalization Acts of 1790 and 1795, which limited citizenship to "free white persons," and congressional debates featuring Senator Jacob Howard, who claimed the amendment would exclude "aliens" and "foreigners." Epstein also invokes legal maxims like ex turpi causa to argue that children of undocumented parents should not benefit from their parents' unlawful status.
Critics, including UC Berkeley law professor John Yoo, counter that Epstein overstates the significance of individual lawmakers' statements. Yoo emphasizes that the states ratifying the amendment did not share Epstein's restrictive view. The Supreme Court itself upheld broad birthright citizenship in 1898's United States v. Wong Kim Ark, ruling that children of lawful residents qualify regardless of parental origin.
Epstein dismisses Wong Kim Ark as "flatly wrong," noting the parents in that case were legal residents, not undocumented immigrants. However, modern courts have broadly interpreted "jurisdiction" to include all individuals within U.S. territory, as reaffirmed in the recent Trump v. Barbara decision.
The debate carries significant implications. Revoking birthright citizenship could lead to administrative challenges, stateless populations, and family separations if children remain citizens while parents face deportation. Epstein acknowledges these concerns but argues Congress should address them through legislation, not constitutional interpretation.
While Epstein's arguments remain fringe among scholars, they underscore the 14th Amendment's enduring complexity. As three Supreme Court justices noted in a dissent tracking his views, the issue remains a flashpoint in America's immigration and identity debates.