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This Word In The 14th Amendment Bans Birthright Citizenship, And It’s Not ‘Jurisdiction’

The 14th Amendment’s Citizenship Clause contains a word that definitively excludes birth tourists: ‘reside.’

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This week, the Supreme Court heard oral arguments in Trump v. Barbara, the most consequential immigration case in decades. The case was brought by the American Civil Liberties Union (ACLU) on behalf of a Honduran national challenging President Trump’s executive order denying citizenship to children born to illegal immigrants and tourists with temporary visas. The question posed was whether the 14th Amendment’s Citizenship Clause guarantees automatic citizenship to every child born on American soil, no matter who the parents are or why they are in the United States.

The 14th Amendment was adopted in post-Civil War 1868 to secure citizenship for freed slaves and their children. But who else is covered? Does that phrase cover children of illegal immigrants, tourists, or temporary visa holders? The prevailing interpretation has been that it does, and that it only excludes children of foreign diplomats, invading soldiers, and members of Native American tribes. (In the case of the latter, Congress passed legislation granting citizenship, just as it did for children born abroad to American parents who are not automatically covered by the 14th Amendment.)

Much of the debate has focused on whether a child is “subject to the jurisdiction” of the United States. But one word in the Citizenship Clause has largely escaped scrutiny: reside.

Here is the clause in full:

“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.”

Perhaps because it comes at the end, it has been treated as an afterthought, but careful reading shows how central the term “reside” is. The clause does not say “are born,” “are physically present,” or “pass through on a tourist visa.” Citizenship is granted only to those who actually “reside,” establishing a precondition for the clause’s........

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