By: Charles Gillman, Partner, Prime Path Immigration Law Firm Limited USA
Jan 27,2025
Is Trump’s Plan to End Birthright Citizenship ‘Dred Scott II’?
That children born in the United States automatically become citizens of the U.S. has deep roots in the common law. But it was not adopted in the constitution until 1868, in the 14th Amendment: “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.”
That sentence overturned Dred Scott, the 1857 Supreme Court decision that affirmed slavery and helped prompt the Civil War. That history has heft, said [Walter] Dellinger, who died in 2022 after a long career in the government and the legal academy and as a leading member of the Supreme Court bar.
“In its most monumentally erroneous decision, the Supreme Court created a monstrous exception to the common law rule that birth on American soil to a free person was sufficient for American citizenship,” he said. “The court held that no persons of African descent — including free persons of African descent — and none of their descendants for all time to come could ever be citizens of the United States regardless of their birth in America.” “From our experience with Dred Scott,” Mr. Dellinger added, “we had learned that our country should never again trust to judges or politicians the power to deprive from a class born on our soil the right of citizenship.”
And yet...
“The once-fringe idea that the Fourteenth Amendment does not confer citizenship on the children of undocumented immigrants or temporary visa holders has gained traction” among immigration restrictionists advising the Trump administration. The framers of the 14th Amendment understood that “the necessities of multiracial democracy demand” the ability of all people residing in the US to have the opportunity to participate fully in civic life. Denying birthright citizenship to the children of undocumented Americans and visa holders would create a permanent group of second-class Americans. Birthright citizenship is an important element in why the U.S. has been more successful in integrating immigrants into our country than most European countries.
If Congress were to pass a statute limiting birthright citizenship and the U.S. Supreme Court held that statute constitutional, children born in the U.S. to undocumented parents or to parents lawfully residing on a visa would no longer be U.S. citizens and could no longer sponsor their parents for lawful permanent residence.
This would potentially create an estranged caste of Americans with negative consequences for the future of our nation. Even issuing failed executive orders creates the view among some Americans that there are people residing in the United States who are less worthy or “legitimate” than others and therefore acceptable targets for dehumanization and discrimination.
