Understanding the 14th Amendment

Updated 11:31 AM ET, Fri November 2, 2018

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(CNN)It may not be as oft-quoted as the First Amendment or as contested as the Second Amendment, but the 14th Amendment to the United States Constitution plays a critical role in supporting some of our closest-held notions of American freedom and equality.

For one, it clearly states that American citizenship is a birthright for all people who are born on American soil -- something that President Donald Trump has announced he wants to end. Not only would this unravel 150 years of American law, it would loosen a significant cornerstone of the Constitution's interpretation of American identity.
In order to better understand this part of the 14th Amendment, we asked two experts in constitutional and immigration law to walk us through the first section. The amendment has five sections, but we will only be dealing with the first, which contains the Citizenship Clause and three other related clauses.
But first, some history
The 14th Amendment is known as a Reconstruction amendment, because it was added to the Constitution after the Civil War in 1868. That places it at an important historical crossroads, when lingering wounds of divisiveness and animosity still plagued the nation and the reality of a post-slavery America begged contentious racial and social questions.
"Thomas Jefferson said men were created equal, but the original Constitution betrayed that promise by allowing for slavery," says Jeffrey Rosen. "The 13th, 14th and 15th amendments were designed to enshrine Lincoln's promise of a new America."
    However, as so often is the case, this reaffirmed American ideal fell short of reality. Rosen notes that issues of civil rights and equal treatment continued to be denied to African Americans, LGBT people and other citizens for more than a century after the amendment's ratification.
    And Erika Lee points out that Native Americans weren't even allowed to become citizens until 1925.
    "Even as [these amendments] were written, obviously there were major built-in inequalities and maybe at the time weren't intended to apply to everyone," Lee says.
    Why was citizenship by birthright such an important concept?
    "Citizenship was a central question left open by the original Constitution," says Rosen. "At the time it was written, the Constitution assumed citizenship, but it didn't provide any rules for it. In the infamous Dred Scott decision, the Chief Justice said African Americans can't be citizens of the US and 'had no rights which the white man was bound to respect.'"
    The US Supreme Court's ruling in the Dred Scott case, named for a slave who unsuccessfully sued for his freedom, has since been widely condemned.
    "The 14th Amendment was designed to overturn this decision and define citizenship once and for all, and it was based on birthright," Rosen says. "It is really important that it's a vision of citizenship based on land rather than blood. It is an idea that anyone can be an American if they commit themselves to our Constitutional values."
    What does it mean to be "subject to the jurisdiction thereof?"
      According to Rosen, this is one of the greatest questions of citizenship. There are two clear examples of people not subject to the jurisdictions of the United States: diplomats and their children, and -- at the time of the 14th Amendment -- Native Americans, who were not recognized as part of the American populace.
      "With those two exceptions, everyone who was physically present in the United States was thought to be under its jurisdiction," Rosen says. "There are numerous Supreme Court cases that reaffirm that understanding, and almost as importantly, there are lots of congressional statutes that assume birthright citizenship."
      Some scholars, like John Eastman of the Claremont Institute's Center for Constitutional Jurisprudence, have argued that children of undocumented immigrants are not "subject to the jurisdiction" of the US and thus should not be considered citizens under the Constitution.
      But Rosen says this is a minority view among constitutional scholars of all political backgrounds.
      "While the Supreme Court has not explicitly ruled [on the issue of children of undocumented immigrants], Congress has passed all kinds of laws presuming their citizenship," Rosen says.