Three Roads to Changing Birthright Citizenship and Which One Works

Every political movement loves a destination and hates a map. Ask a hundred people who want to change birthright citizenship how they plan to do it and you will get ninety answers that amount to "somebody should." Somebody should pass a law. Somebody should sue. Somebody should get the Court to see sense. Somebody, somewhere, should do something, and then it will be done.

Folks, that is not a plan. That is a wish with a bumper sticker on it. If you believe the law should change, and a lot of serious conservatives do, then you owe it to yourself to know which road you are on and what the toll is. There are three roads. I am going to lay them side by side, tell you what each one costs, and then tell you which one I would walk. If you want the history of the clause first, start with What the 39th Congress Meant by Subject to the Jurisdiction Thereof. This post assumes you have read the clause and want to know what to do about it.

The three roads at a glance

Now let us take them one at a time.

Road 1: The amendment

The Constitution can be amended in one way that has ever been used, and it is the one in Article V. Two-thirds of both houses of Congress propose the amendment, and then three-fourths of the states ratify it. There is a second route in Article V, a convention called by two-thirds of the state legislatures, but it has never been used to propose an amendment, so I will treat the congressional route as the real one.

Do the arithmetic, because this is where dreams go to die. The House has 435 members. Two-thirds of 435 is 290, and I am assuming every member votes. The Senate has 100 members. Two-thirds of 100 is 66.67, which means 67 senators. Then the amendment goes to the states. Three-fourths of 50 is 37.5, which rounds up to 38 states. Put it the other way: 13 states can block it. Thirteen. That is the number that has killed more good ideas and more bad ones than any other in American politics.

Remember how rarely this has worked. The country has ratified 27 amendments in more than two centuries. Congress has sent 33 to the states. The most recent, the Twenty-Seventh, was proposed in 1789 and ratified in 1992, and the story of how it happened is in Article V Explained, and the Amendment That Took More Than 200 Years. You do not get to a constitutional amendment on a hot issue by being right. You get there by being right with enough people, in enough places, for long enough that the other side runs out of reasons.

The case for it. An amendment is the only road that no court can reverse. If it passes, the question is settled. It is also the honest road. If the clause has been read for more than a century to mean something you dislike, and you believe the people should change it, the Constitution gives you the procedure. And if you want the change to be legitimate, you want it to come from three-fourths of the states, not five judges.

The case against it. It will not pass, at least not soon. Nothing in the political landscape suggests a coalition of 290 House members, 67 senators and 38 state legislatures on this subject. Spending a decade of a movement's energy on the amendment is a decade not spent on something that could happen.

That is not a reason to ignore it. It is a reason to understand it as the long game, the backstop that exists whatever the Court does.

Road 2: The statute

This is the road most people mean when they say "pass a law." Here is how it would work. The citizenship statute, section 301 of the Immigration and Nationality Act, is codified at 8 U.S.C. 1401. It lists the people who are citizens and nationals of the United States at birth, and the first item on the list repeats the words of the Fourteenth Amendment: a person born in the United States, and subject to the jurisdiction thereof. Those words have been in the statute since the Nationality Act of 1940 and the Immigration and Nationality Act of 1952, and they track the amendment.

The statutory plan is to amend that section so that it says what "subject to the jurisdiction thereof" means. For example, Congress could say it excludes a child born to parents who are in the country unlawfully, or on a temporary visit. A bill along those lines has been introduced in various Congresses. You can search Congress.gov for the bills yourself.

Here is the obstacle, and it is not small. Congress cannot change the meaning of the Constitution by passing a law. When Congress tried to expand its enforcement powers under the Fourteenth Amendment in the Religious Freedom Restoration Act, the Supreme Court said in City of Boerne v. Flores (1997) that Congress's power is to enforce the amendment's guarantees, not to redefine them. And Marbury v. Madison (1803) established the principle that it is the Court's job to say what the Constitution means. A statute that says "jurisdiction means X" will be tested against the clause, and the Court will decide whether X is what the clause means.

There is a second obstacle in the cases about citizenship in particular. In Afroyim v. Rusk (1967), the Court held that Congress has no power to take citizenship away from a citizen without his consent. So a statute that said a child born here is not a citizen is, in the eyes of a court, either a definition of who gets citizenship in the first place or an attempt to strip it. Which one it is will be argued about, and it will be argued from Wong Kim Ark.

The case for it. It is faster than an amendment. It needs only a majority of Congress and a President, plus the Senate's 60-vote threshold unless the rules change. It also forces the question: a statute that gets challenged becomes the test case. And it has a built-in democratic argument. If the question is open at the edges, Congress is a legitimate place to start the answer.

The case against it. A statute that conflicts with the Court's reading of the clause will lose in court, and a loss has costs. It could set the movement back years, and it could harden the existing reading into stone.

Road 3: The test case

The third road goes through the courts directly, and it works like this. The government adopts a policy, for example, a refusal to issue a passport or a Social Security number to the child of a certain class of parents. A family sues. The lower courts rule. The case climbs to the Supreme Court, which decides whether the clause covers the child.

The obstacle is again Wong Kim Ark (1898). I explained in What the 39th Congress Meant by Subject to the Jurisdiction Thereof that the holding is narrower than either side admits, because the parents were lawfully and permanently domiciled. That leaves daylight. A test case would have to be built on facts that Wong Kim Ark did not decide: parents who entered unlawfully, or parents in the country on a temporary visa. The case needs to be built carefully, because a bad fact pattern makes bad law. It also needs the right plaintiff and the right posture.

There is a related issue worth understanding. The Court usually does not make sweeping rulings on questions that nobody has litigated on the precise facts. A test case lets the Court rule on exactly the facts presented. If you want a narrow ruling, you need a narrow case. If you want a broad one, you cannot expect to get it.

For readers who want a refresher on how the federal courts handle policy disputes and the injunction fights that come with them, see One Judge, One Injunction, One Country, and How Federal Courts Block Policy.

The case for it. The Court can do in one decision what Congress and the states cannot do in a decade. It is the only road that answers the open question about unlawful and temporary presence authoritatively.

The case against it. It depends on the composition of the Court on the day the case arrives. It depends on the case being well built. And a loss is harder to undo than a bill that dies in committee, because it becomes precedent.

What each road costs, in plain terms

A short way to remember the prices:

1. The amendment costs time and a coalition. It is slow and expensive and permanent.
2. The statute costs a fight in Congress and a likely court challenge. It is cheaper to try, but the odds are only as good as the legal argument underneath it.
3. The test case costs the risk of losing. It is the most direct, and the most dependent on luck.

Notice that the second and third roads are not really separate. A statute is the usual way a test case begins, because a statute is a government act that a plaintiff can challenge. The sensible way to look at the choice is as two paths: the Article V path and the statute-into-court path.

The strongest objection

Let me state the best argument against walking any of these roads, as its defenders would. It goes like this.

1. The Citizenship Clause has been read the same way for more than a century, and the nation has organized its law, its records and its families around that reading.
2. Changing it creates a class of people born here who belong to no country and have no secure legal status, which conservatives, of all people, should hesitate to create. It adds a new bureaucratic task, proving the legal status of a newborn's parents, to the most basic act of government record-keeping.
3. If the real problem is illegal immigration, the proper tools are enforcement, employer verification and visa reform, not rewriting a clause that has worked.

That is a serious argument, and I do not answer it with a joke. Point two is the one that should make every reader pause: the practical question of how a hospital, a county clerk and a Social Security office would determine a newborn's status is not trivial, and any statute would have to answer it. The honest reply is that a change would need a clear rule for documentation, that it should apply only prospectively, and that no one in the debate should pretend the administrative problem away. On point three, I agree that enforcement and verification are the main tools, which is why I recommend E-Verify Explained, the Free Federal Check Most Employers Skip to anyone who wants to see what the other half of the answer looks like.

My verdict

Which road should a serious conservative walk?

I would walk two of them in order, and keep the third in my pocket. If the goal is a real change that lasts, the only road that guarantees it is the amendment, and it is a long walk through 38 states. For that reason, anyone who treats the amendment as a joke is not serious, and anyone who thinks it will be easy is not either.

In the meantime, the realistic path is the statute that creates a narrow test case. Draft it carefully. Limit it to the facts that Wong Kim Ark did not decide. Write the documentation rules so a county clerk can follow them. Make it prospective. Then let it go to the Court, where the question can be answered on its merits, and accept the answer. If the Court says the clause covers the child, then the movement has a clear choice: go back to Article V and try to win the argument across the country.

What a serious conservative should not do is skip the work and shout that the law "obviously" means one thing. That is how you lose in court and lose in the country.

The bottom line

• There are three roads: an Article V amendment, a statute rewriting 8 U.S.C. 1401, and a litigated test case. Each has a different price.
• The amendment needs 290 of 435 House members, 67 of 100 senators, and 38 of 50 states. Thirteen states can stop it.
• A statute cannot redefine the Constitution. It can, however, create the test case that lets the Court answer the part of the question Wong Kim Ark left open.
• Build any case on narrow facts, write the paperwork rules before you write the slogan, and expect to lose some rounds.
• Read the statute and the clause yourself at Congress.gov, and check any bill you are asked to support to see which road it is on.