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Purple Project for Democracy: Debating Birthright Citizenship As Defined In The 14th Amendment

Demonstrators arrive in front of the US Supreme Court during the
Demonstrators arrive in front of the US Supreme Court during the "Home Is Here" March for Deferred Action for Childhood Arrivals (DACA), and Temporary Protected Status (TPS) on November 10, 2019 in Washington D.C.

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The U.S. Constitution’s 14th Amendment begins with what’s known as the “Citizenship Clause:” “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.”

It goes on to lay out protections for citizens against any law a state might make that would abridge those privileges and provides protection against deprivation of life, liberty or property without due process. But, as is often the case when it comes to matters of constitutional law, what the words of that amendment actually mean and imply can depend on who you ask. 

Specifically, in the case of the 14th Amendment, legal scholars have long debated whether or not that first sentence mandates universal birthright citizenship. The debate resurfaced in the mainstream media in late 2018, when President Trump said during an interview that he was preparing an executive order to end birthright citizenship, and that it’s within the president’s power to change the 14th Amendment. The Citizenship Clause is also often referenced in the discussion about whether the children born to those who entered the U.S. illegally qualify for birthright citizenship. Landmark cases like U.S. v. Wong Kim Ark (1898) and Elk v. Wilkins (1884) have added some clarity, but legal scholars from differing ideologies still debate who is and is not protected by the Citizenship Clause, how the framers meant for us to understand it, and how it’s understood in a modern context.

Today on AirTalk, as part of our contribution to “Purple Project for Democracy,” we’ll debate the 14th Amendment with two legal scholars who have very different opinions about what the 14th Amendment says, whether it mandates universal birthright citizenship, and how this discussion fits into another controversial topic -- whether or not the children of undocumented aliens have a right to U.S. citizenship.


Pratheepan Gulasekaram, professor of constitutional and immigration law at Santa Clara University; he tweets @pgdeep

Amy Swearer, senior legal policy analyst at The Heritage Foundation’s Meese Center for Legal and Judicial Studies; she tweets @AmySwearer