Birthright Ban Also Threatens Equality Before the Law
- caswellk38
- Jan 22
- 4 min read
Updated: Jan 24
How reinterpreting the phrase "subject to the jurisdiction" of the United States could institutionalize inequality before the law.
The Fourteenth Amendment guarantees citizenship for everyone born on U.S. soil and equality before the law for every person.
But on Inauguration Day, President Trump signed an executive order upending the Fourteenth Amendment. He declared an end to birthright citizenship on the grounds that children of undocumented immigrants are not "subject to the jurisdiction of" the United States—and thus the Fourteenth Amendment does not apply to them.
Trump’s executive order to end birthright citizenship isn't just an attack on immigration. It’s a direct assault on the fundamental right to equality before the law.
Understanding Birthright Citizenship
Birthright citizenship is the doctrine that anyone born on U.S. soil becomes an American citizen. As the Fourteenth Amendment of the Constitution 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 clause was established to make sure that the children of enslaved people would be treated as citizens, regardless of their parent's citizenship status at the time of their birth.
For over 100 years, birthright citizenship has been a matter of settled law (see United States v. Wong Kim Ark, 169 U.S. 649 (1898)). The only exceptions to this rule have been made for children of foreign diplomats, since diplomats have immunity from prosecution under U.S. law, which makes them not “subject to the jurisdiction” of the United States.
To change a rule established in the Constitution, including birthright citizenship, the Federal Government needs to pass a Constitutional amendment, either through a 2/3 majority of both the House of Representatives and the Senate, or by passing a state convention (see Article V of the Constitution).
However, the Trump Administration is attempting to enforce an executive order banning birthright citizenship, circumventing both the role of the people and the rule of law in the United States.
“Subject to the Jurisdiction Thereof”: The Trump Administration’s Argument
The justification? According to the Trump administration, a Constitutional amendment is not required to change the 14th Amendment because, if a person is the child of two people who are not lawful permanent residents, that person is not “subject to the jurisdiction” of the United States. Presumably, neither are their parents. This includes both those who are undocumented and those who are lawfully but temporarily present.
That means the 14th Amendment would not apply to either the children of undocumented immigrants, nor to those who are not lawful and permanent residents of the United States, such as persons in the United States on a student visa.
Inequality Before the Law
The implications of this reading pass far beyond Birthright Citizenship. It affects the entire Fourteenth Amendment.
After establishing Birthright Citizenship, the Fourteenth Amendment continues:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Just like birthright citizenship, being within the "jurisdiction" of the United States is used as a qualifier for receiving equal protection of the laws.
If the courts decide that non-citizens are not subject to the jurisdiction of the United States, then State governments—and presumably the Federal Government—can deny non-citizens equal protection of the laws.
With this argument, non-citizens might not be able to access legal recourse for crimes committed against them, such as discrimination, harassment, and violence, including domestic abuse or hate crimes.
The government could justify denying undocumented individuals access to healthcare, emergency services, or other public services, which they are currently entitled to based on Plyler v. Doe, 457 U.S. 202 (1982).
Perhaps the biggest policy for which this argument lays the groundwork is to allow the government to pursue exceptionally harsh punishments for specific categories of people. See, for example, the Trump Administration's executive order requiring the death penalty specifically for undocumented migrants who are convicted of any qualifying crime—regardless of the circumstances.
Right now, that should violate equal protection under the law. But if the courts uphold the Trump adminstration's idea of jurisdiction, they could institutionalize inequality before the law.
Rights from Personhood
The Trump Administration seems to believe the government is intended to be the giver and the taker of rights, that the right to justice is limited to American citizens.
But the Framer’s vision of human rights is clear. The Declaration of Independence says, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
The Constitution sees rights as coming from personhood, not citizenship.
The right to equal protection under the law, and the right of birthright citizenship, is clearly meant in the Constitution to apply to all persons within the borders of the United States. The courts must not allow the Trump Administration to use a false interpretation of the Constitution as a tool for injustice.