Those born in the United States are clearly citizens

The Constitution and the holdings of the Supreme Court are clear: All persons born in the United States are citizens regardless of whether their parents are citizens or even in the country illegally. Shortly before the Nov. 6 mid-term elections, President Donald Trump made headlines when he said that he would issue an executive order to deny citizenship to those born in the United States whose parents are not lawfully present in the country. There is no doubt that this would be unconstitutional and not something that he or any president or even Congress could do.

The pertinent constitutional language is in Section 1 of the Fourteenth Amendment. The first sentence of that provision says, "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." The language is clear: All persons born in the United States are "citizens."

This language was adopted to overrule the Supreme Court's infamous decision in Dred Scott v. Sandford in 1857. From the time of the Declaration of Independence and the adoption of the Constitution, it always had been assumed that those born in the United States were American citizens. But in Dred Scott, the Supreme Court held that slaves are property of their owners and that slaves are not United States citizens, even if they had been born in the United States.

The Fourteenth Amendment was adopted 11 years later, after the Civil War in 1868. Its first sentence was intended to explicitly overrule Dred Scott v. Sandford and to ensure that all who are born in the country are United States citizens. Both supporters and opponents of the Fourteenth Amendment shared the understanding that it would automatically grant citizenship to all persons born in the United States, except children of foreign ministers and invading armies.

Trump, and the few academics who support his position, point to the language that says citizenship is conveyed to those born or naturalized if they are "subject to the jurisdiction thereof." But this had a clearly intended meaning and it had nothing to do with the children of undocumented immigrants. The focus was on excluding from citizenship children born to ambassadors who were serving in the United States. Because of diplomatic immunity they are generally immune from prosecution under American laws and thus are not "within the jurisdiction of the United States." Also, at the time of the ratification of the Fourteenth Amendment, this was thought to include Indians who were governed by a separate sovereign.

Above all, it is clear that this provision was not about immigrants who entered the country unlawfully. In 1868, there were no restrictions on immigration into the United States. It could not be said that any person was illegally present.

This is not a new interpretation of the language of the Fourteenth Amendment. In 1898, in United States v. Wong Kim Ark, the Supreme Court was explicit that those who are born within the United States are automatically American citizens even if their parents are citizens of other countries. The court said that the phrase "subject to the jurisdiction thereof," was meant to exclude from automatic citizenship the children of foreign diplomats or hostile invaders, who are not subject to U.S. legal authority due to their diplomatic and combatant immunity. The court said that in light of English common law, which had included virtually all native-born children as citizens, all who are born in this country are citizens of the United States. The court said that only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of this country's territory are excluded from citizenship if born in the United States.

Contrary to President Trump's assertion, many countries of the world follow this same approach and accord citizenship to anyone born there. Trump has said that the United States is the only country "stupid enough" to have such a policy. This simply is not true. At least, 33 other countries follow the same approach and accord citizenship to all who are born there.

For over a century, federal law has accorded citizenship to all who are born within the United States. President Trump and others object to this and want to change it. But for their position to triumph, they must amend the Constitution or at least get the Supreme Court to overrule its 117-year-old precedent. Neither is at all likely to happen. It certainly cannot be done, as President Trump asserted, by an executive order.

People certainly can disagree with the law in this or any other area and urge its change. But it is important to separate their views about what the law should be from the reality of the settled law. Under it, all born in the United States are American citizens.