Tenney Wants to Change Who Gets to Be an American

The 14th Amendment

Birthright citizenship is guaranteed in the 14th Amendment to the Constitution. Section 1 reads, “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.  That seems pretty clear, but opponents of birthright citizenship argue that the children of temporary visa holders and the children of illegal immigrants are not “subject to the jurisdiction thereof.”

Lawmakers wrote the 14th Amendment after the Civil War. Before the Civil War, the Supreme Court’s Dred Scott decision decreed that slaves could not become citizens, even if they were born here. After the Civil War, enslaved people had no clear legal status. Former slave states tried very hard to ignore the Emancipation Proclamation that freed the slaves. They passed a series of laws known as the Black Codes. These laws controlled the movement, work, and basic rights of newly freed slaves. In some places, authorities arrested Black men because they couldn’t show proof of employment. In other places, the authorities forced them into labor contracts, sometimes with their former slave owners. The effect of the Black Codes was to re-enslave freed slaves. 

Congress was enraged by this and adopted the 14th Amendment in 1868. The amendment guaranteed citizenship to newly freed men, women, and children – “All persons born or naturalized in the United States…are citizens of the United States …No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” Lawmakers designed the 14th Amendment to address the problem once and for all.

But now opponents of birthright citizenship, like Rep. Tenney, argue that it was never intended to apply to other people.  Although there’s no language in the 14th Amendment limiting it to freed slaves, Rep. Tenney said, “The Fourteenth Amendment was ratified to ensure citizenship for newly freed slaves and their children, not to create a permanent incentive for illegal immigration.”

But the Supreme Court ruled in 1898 that birthright citizenship applied not only to freed slaves but also to other children born in the United States to noncitizen parents. That case was United States v. Wong Kim Ark.  

Wong Kim Ark was born in San Francisco to Chinese immigrant parents who were not citizens. At the time, Chinese immigrants were legally prohibited from becoming citizens. Wong Kim Ark left the United States on a trip, but upon his return, the government denied him entry under the Chinese Exclusion Act.  As in Trump v Barbara, the government argued that Wong Kim Ark was not an American citizen even though he was born in this country because his parents were not citizens.  The Supreme Court rejected that argument. In a 6–2 decision, the justices ruled that the 14th Amendment made him a citizen. The Wong Kim Ark decision stood for more than 125 years. It was thought to be settled law.

People like Rep. Tenney, who want to end birthright citizenship, focus on five words in the 14th Amendment, “subject to the jurisdiction thereof.” They argue that people who are here illegally are not “subject to the jurisdiction thereof.”  And they cite the principle of mutual allegiance. People are free to choose which country to become citizens of, and the nation is free to decide who may become citizens. By entering the United States without approval – a federal offense –  Congress denied approval for illegal immigrants to become citizens.

Supporters of birthright citizenship argue that the current interpretation of the 14th Amendment – “born here=citizen” – is supported by a century of court rulings. They contend that the 14th Amendment established a clear, simple rule that avoided confusion and discrimination. 

Tenney has taken other hardline positions on immigration – surprising, given that many farmers in her 24th Congressional District depend on immigrant labor. Earlier last year, she and Rep. Nick Langworthy (R-NY23) sent a letter to newly confirmed Defense Secretary Pete Hegseth, requesting that the Department of Defense use the Niagara Falls Air Reserve Station as an ICE detention site and base for deportation flights. They wrote, “Utilizing this federal resource would help ease the burden on local law enforcement.” They wanted ICE to move illegal immigrants from New York City to Niagara Falls. “With an estimated 759,218 illegal immigrants residing in New, including 58,000 individuals who are either convicted felons or facing criminal charges, the need for additional detention capacity is clear.” (A recent proposal by Gov. Hochul would “ease the burden” by prohibiting local law enforcement from being deputized by ICE for federal civil immigration enforcement.)