The Fourteenth Amendment, enacted in 1868 to guarantee citizenship to newly freed slaves, has come under fire recently from anti-immigrant politicians. For nearly 150 years, this Amendment has protected all children born on U.S. soil – regardless of their race and ethnicity or the status of their parents. With very limited exceptions, all children born here are given equal rights. Now anti-immigrant legislators are putting forth needless, divisive measures to undo this great American tradition.
Representatives from several states, including Indiana, Mississippi, and Oklahoma, have introduced legislation to revoke the right of birthright citizenship. Supporters of these measures claim that citizens of other countries are crossing into the U.S. with the goal of having babies within our borders, to ensure undocumented parents an advantageous familial connection within the United States.
Anti-immigrant politicians apparently do not understand that these sorts of proposals are entirely unconstitutional. Further, eliminating birthright citizenship would undo the fundamentally American goal of putting citizenship above racial or political prejudices and would lead to dangerous consequences. If these bills passed, racial profiling at hospitals would be rampant as administrators attempted to figure out the immigration status of parents. For fear of this, pregnant women and new parents would avoid hospitals, risking their health and the health of their infants. Hospital employees could make upsetting and costly mistakes by denying lawful residents birth certificates in the maternity ward. Children could be forced to carry government-issued documents at all times (documents that can be expensive and hard to get) in order to prove their status. Most distressingly, blameless children would be born into a second class, with their legal rights in limbo.
Because we at the ACLU believe in a land of equal opportunity where every child, regardless of race, ethnicity, or ancestry, is born with the same rights as every other U.S. citizen, we have joined to oppose these attacks on the Fourteenth Amendment.
Fortunately, it seems as though logic, law, and facts may be turning the tide against these proposals. In the last week, South Dakota, Montana, and Arizona all shot down attempts by state legislatures to amend birthright citizenship. Recognizing that hateful, xenophobic bills won’t fix our country’s immigration issues, lawmakers in these three states blocked what could have been dangerous threats to our nation’s civil liberties.
not only failed in the legislature but came under intense scrutiny by Gov. Brian Schweitzer who said that he would “veto any unconstitutional bills” such as this one. Opposition to the bill is strong and Niki Zupanic, public policy director at the ACLU of Montana, summed up criticism of the proposal when she : "Bills like this, that try to rewrite the 14th Amendment, bills like this that try and say some citizens are better than others or some children are better than others [are] wrong -- it's un-American.”
South Dakota’s rejection of 14th Amendment proposal is also heartening. Rep. Manny Steele, who introduced the bill, , “Our system is being abused, and this state compact is a method to correct this abuse.” Opponents to the bill included an organization of nuns who pleaded with the legislative panel to “Remember the innocent children.” The bill failed in an 8-5 vote last Monday.
The most significant failure of a birthright citizenship bill, however, came from farther south. The stoppage of Arizona’s and is a promising indicator of a backlash against birthright measures. Arizona has recently been in the limelight as the most infamous of the anti-immigrantstates, but lawmakers in the state are unraveling that reputation with a strong showing against 14th Amendment change. State Sen. Russell Pearce, who introduced the bills with fellow senator, Ron Gould, that “illegals come here to have children only to gain access to welfare and benefits.” Fortunately, Gould and Pearce’s beliefs were in the minority. While the bill could be reintroduced, for now it lies dormant.
These three events last week indicate an important slowing of the anti-immigrant momentum we've seen in recent months. We are hopeful that the events of this last week reflect a growing recognition among responsible legislators that immigration reform won't come from targeting individuals and revoking the protections our country provides but from a call for unity of purpose and pragmatic action consistent with our nation’s greatest ideals.
Learn more about citizenship at birth: Visit our Citizenship At Birth Under the 14th Amendment topic page. Subscribe to our newsletter, , and .
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.