Trump's Order on Birthright Citizenship: Regulating Immigrant Wombs

The 14^th Amendment states: “Section 1. 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.”

In 1898, the Supreme Court ruled on what this means: All persons—everyone, without distinction or qualification— who is born in the U.S. is a citizen.

Now, President Trump wants to use an executive order to overturn a Supreme Court precedent that has been in effect for 120 years.

No Supreme Court ruling has been overturned by an executive order. Nor has any amendment been overturned by an executive order.

Emboldened by his 5-4 win in Trump v. Hawaii (the administration’s third version of the Muslim ban), Trump appears to believe he has five votes in his pocket on this issue.

But let’s take a closer look at what his order means. It means that the wombs of immigrant women carry children who are unworthy of U.S. citizenship.

The Supreme Court in 1898 reviewed the meaning of the text of the 14^th Amendment by examining congressional intent. Here is what the Court and senators said (quoting in red text from 1898 decision with sub-quotes from 1868 Senate debate):

“During the debates in the senate in January and February, 1866, upon the civil rights bill, Mr. Trumbull, the chairman of the committee which reported the bill, moved to amend the first sentence thereof so as to read: ‘All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without distinction of color.’

Mr. Cowan, of Pennsylvania, asked ‘whether it will not have the effect of naturalizing the children of Chinese and Gypsies, born in this country?’

Mr. Trumbull answered, ‘Undoubtedly;’ and asked, ‘Is not the child born in this country of German parents a citizen?’ Mr. Cowan replied, ‘The children of German parents are citizens; but Germans are not Chinese.’

Mr. Trumbull rejoined, ‘The law makes no such distinction, and the child of an Asiatic is just as much a citizen as the child of a European.’”

Wong Kim Ark— born in the U.S. to a Chinese mother and a Chinese father, neither of whom were citizens— was denied re-entry upon returning from a visit to China. 

Why? 

Because the Congress enacted a law to exclude Chinese aliens and also to tear up the return certificates (passports) of their U.S. born children.

How is this “womb politics”? 

Lawmakers in the 1870s through 1910s viewed the Chinese as an inferior race. Chinese women were legally treated as immoral (Google the Page Act of 1875 and see for yourself). Rep. Page did not fear immorality, or else his legislation would have regulated promiscuity without regard to the Chinese. 
His bill intended to prevent Chinese women from giving birth on U.S. soil. He understood that the 14th Amendment meant that a person born to a Chinese mother on U.S. soil was a citizen, so he successfully passed a law that restricted Chinese immigration in Hong Kong and other ports that were departure points for Chinese women heading to America. 

Congress believed that every newly born child in the U.S. was a citizen, without distinction. These babies were created as equals; and their mothers, including their reproductive capabilities, were also viewed as equals without constitutional distinction.