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Birthright Citizenship
For people interested in the topic of United States “birthright citizenship” that has recently reentered the news discussion, I highly recommend the January 30, 2025 edition of the podcast Case In Point right here on the Ricochet Audio Network. (The recommendation is late because I am behind on my podcast listening.)
The podcast is an interview with Amy Swearer of the Heritage Foundation, based on a law review article by Ms. Swearer.
No non-lawyer is likely to read a law review article. But this interview is very accessible to everyone.
Ms. Swearer promotes the position that “birthright citizenship” is not necessarily automatic based on the single fact of birth in the United States.
Since President Trump said that he intended to limit “birthright citizenship,” almost all the commentary I read and hear is along the lines of, “He can’t do that. The 14th Amendment [to the United States Constitution] says so, as confirmed by the United States Supreme Court in United States vs. Wong Kim Ark.” End of discussion.
I have heard no real explanation of the potential issues. Because I am a lawyer, I know that issues of law are rarely as simple as they are presented in the general media.
Ms. Swearer goes through the “English common law” history of “birthright citizenship,” the history of the provision in the 14th Amendment (“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”), and the Wong Kim Ark case.
“. . . and subject to the jurisdiction thereof, . . .”
The usual argument I hear about the phrase “and subject to the jurisdiction thereof” in the citizenship clause of the 14th Amendment is that it simply means that someone who commits a crime, such as murder or burglary, in the United States can be prosecuted for that crime. But using history, Ms. Swearer raises the possibility that “subject to the jurisdiction thereof” has a much deeper meaning, and involves lifetime obligations we don’t normally think of.
We in the 21st century tend to focus on the benefits of United States citizenship. But Ms. Swearer notes that the origins in English common law of “birthright citizenship” were focused on the obligations of citizenship (or being a “subject” in the original English iteration), particularly taxation and conscription for military service in a feudal society. Anyone who was an English royal subject could be taxed indefinitely and conscripted for military service, creating an incentive for the rulers to make the definition of subject (or citizen) as broad and universally applicable as possible.
To me, that brings up the question, if “citizen” carries obligations of lifetime taxation and potential conscription for military service, how far are we willing to enforce those obligations on people regardless of where they and their families live, simply because they were born in the United States? Does it really make sense to impose those obligations on a person whose parents just happened to be on United States territory when the person was born?
Ms. Swearer also describes the comments and arguments of the people who wrote and debated the 14th Amendment and its implementing legislation, many of which asserted that they were doing something different from the old English common law.
United States vs. Wong Kim Ark
I keep hearing and reading that the 1898 United States Supreme Court decision of United States vs. Wong Kim Ark says unequivocally and settles forever that anyone born on United States soil is automatically a United States citizen.
My own observation is that no U.S. Supreme Court decision is immutable, and is always subject to overturning if determined to have been wrong, or modified if its logic does not apply.
More significantly, Ms. Swearer goes through the facts of the Wong Kim Ark case, observing that if the Court were really saying that anyone born on United States soil is automatically a United States citizen, the opinion would have been a lot shorter than it is. There would have been no reason for the Court’s extensive discussion of Mr. Ark’s parents and their legal status, which seemed to be important to the outcome of the case. Ms. Swearer also notes the relevance that under the immigration and citizenship laws of the era, Mr. Ark’s (Chinese immigrant) parents were unable to become United States citizens.
Prior Presidential Interpretations
Ms. Swearer also notes that government administrations subsequent to the Wong Kim Ark case have treated citizenship as not automatic based solely on birth on United States territory.
Significant legal scholars in the early 20th century have asserted that United States citizenship is not based solely on geographic location of birth.
Conclusion
Ms. Swearer demonstrates that President Trump’s stated intent to restrict birthright citizenship of children born to aliens illegally present in the United States is more logical than most general media commentators give it credit for.
Maybe Ms. Swearer’s position doesn’t win in the end. But it sure was helpful to hear a thorough logical articulation of the issues.
Published in Law
The President is not the “orange idiot” as some here have described him. He seems to have an understanding of many things that is greater than what progressives would like you to think.
Yes, I heard this, and recommend it highly.
There is a sensibility to this question, what is sensible? Her exploration of this question is so refreshing, like someone is finally considering the concept of Citizenship itself, why it’s important, what it means.
To gain “citizenship” by merely happening to be born while geographically here demeans the entire concept.
I have always been guiltily attracted to Heinlein’s idea of Citizenship, elucidated in Starship Troopers.
That podcast was marvelous. She laid out all the legal and constitutional history so clearly. I hope she writes the brief for SCOTUS.
I was an intern at LAC -USC medical center in the early 80’s.
During my OB rotation we had a huge number of “red blanket”, emergency deliveries. Illegals would sit in the parking lot, waiting until they were almost “crowning”. We would rush them directly to delivery, no time to do any of the normal pre delivery routines designed to protect both mother and child. So there were a number of complications that would result.
And Voila! A new US citizen was born. Now mom dad and siblings were all anchored in the US, and eligible for the full range of benefits available to US citizens. My colleagues and I would joke about the fact that we made “more citizens than a Federal judge.” One night we had a really slow night on call, way way out of the ordinary. When we left the next morning, we noticed a green van parked by the entrance. Our suspicion was the illegals drove up, saw the van, thought it was immigration, and vamoosed. We joked about buying a similar van and parking it there when we wanted a slow night. Interestingly San Diego, right by the border had less illegal deliveries. Because they were so close to Mexico, if an illegal came in in labor and there was time, they would load them in an ambulance and drag them to the border to a Mexican hospital. This was known to the illegal population.
I’m not a lawyer. But the thought that the drafters of the 14th amendment meant for it to mean anyone who could waddle across the border and drop anchor would be a citizen is idiotic. If that was their intention why the restrictions on diplomats? Also excluded were Indians. The current interpretation of birthright citizenship is a misapplication of what the framers of the 14th amendment intended, which was to grant citizenship to freed slaves and their children because they had no other citizenship which would preclude them from being under the “jurisdiction of the United States”. The case that all the liberals cite in this broad characterization of birthright didn’t even involve an illegal immigrant, but a child of legal immigrants.
This application of the law has to change. And it seems clear to me that it will not require a constitutional amendment . Hopefully SCOTUS will make a clear and definitive ruling that will put this farce to rest once and for all
Birthright Citizenship: A Fundamental Misunderstanding of the 14th Amendment
I have always been partial to that citizenship as well. Maybe because I did my stint in the Navy and thus would be a citizen so I am biased.
The larger question may be whether a president can change the law. It would be much better if Congress passed a law defining this rather than having an executive order that the next progressive president will overturn. I don’t want presidents deciding who is and is not a citizen, but I would be happy to see Congress take this up.
I agree, but every immigration reform effort in Congress has died.
Jeb Bush had a great plan that went the way of his candidacy, unfortunately. I haven’t actually read his book, but reviewers said it was excellent and described a viable plan for the future. Jeb Bush was on the front lines of this issue.
That rings true for most of Trump’s intents.
Don’t tell us, tell your Congresspeople. I totally agree, but unless it involves spending more of our money, it’s very difficult to get Congress to agree on anything, let alone a law that restricts what Democrats consider to be future votes.
OK, I got those guys moving. Thanks for suggesting it.
If anyone could do it………
We had a huge discussion about this about 8-10 years ago on Ricochet. I wish I could search my comments to find it, but one case I found was Lynch v Clark (1844, New York Chancery court). Ms Lynch’s parents were visiting her Uncle, a lawyer in the US when she was born. The visit was for months, and then they returned to Europe. Some time later her uncle died without issue and initially he portion of the law practice was inherited by his law partner. The Lynch family sued. The inheritance depended on whether or not Ms Lynch was a citizen. The court held that she was and she inherited her uncle’s property – despite never having lived in the country since her birth.
I don’t know what President Trump is changing / proposing to change. I’m not sure he’s proposing to change any laws. Are there laws that would need to be changed? Many past decisions about who is or is not a citizen have been executive branch decisions on matters like issuing passports.
If you want the Trump interpretation to stick past his term in office, it would be best to pass a law.
Skin in the game.
The fact is, this has never been legislated. So it’s basically been done by executive authority. Trump is just proposing a change in that interpretation of the 14th amendment. It will get challenged in court and SCOTUS will ultimately get a chance to rule. They may very well say congress can legislate the scope of birthright citizenship.
Such as, just what “subject to the jurisdiction…” means.
If we want our interpretation to get ruled on by SCOTUS, we have a better chance if there is congressional legislation rather than just an executive order. SCOTUS may rule that yes, in the absence of congressional legislation to the contrary the executive can issue an order, but that doesn’t make the EO the supreme law of the land.
But it’s not a law. There is a SCOTUS decision Kim Wong Ark or something like that that had nothing to do with whether a child of illegals is a citizen. Otherwise, it’s all a misinterpretation of that SCOTUS decision and the text of the 14th amendment. Congress never passed a law on this.
I think the Supreme Court will decide the issue long before the next presidential election.
It’s not the president (or Congress) who is deciding who is a citizen. The 14th Amendment decided it, and Trump is interpreting (correctly IMHO) what the framers of the 14th Amendment said about who is a citizen.
Congress can remove ambiguity. It’ll be challenged, but Congress’s legislation will help ensure that any SC ruling comes out right. It could be more of a tossup without that.
I view this as the Trump Admin looking to clarify the 14th Amendment and qualify the previous court decision, not some radical overthrow of the law.
The absurdity of birth tourism with customer service companies to facilitate rich Chinese in CA getting birth right citizenship for their newborn, then goes home is clearly a mocking abuse of the 14th. I doubt this situation was even conceivable to the people who drafted the 14th. The 14th is a good law, but needs to be clarified within the context to the language and the spirit of the original.
I’ll check out the podcast episode from your strong endorsement
It annoys me that some people proclaim that birthright citizenship is in the constitution, end of story, without even giving a nod to the possibility that “subject to the jurisdiction thereof” might open the discussion to another interpretation. It especially annoys me when someone like Bill O’Reilly does this, which he has done. He claims to be an historian, so he of all people should be aware of the nuances of the amendment, but he just blows off the possibility of the second interpretation. Or at least the last time I heard him speak about it he did. The day after Trump signed the executive order, O’Reilly said, Trump won’t win this, birthright citizenship is in the constitution, that’s it. Unfortunately, I couldn’t listen the next day, when hopefully he might have gotten some correspondence from some listeners challenging him. Mark Levin has devoted several segments of his show explaining why “subject to the jurisdiction thereof” changes everything, as outlined in the OP. I think Trump may very well win this when it gets to SCOTUS.
Also, the idea of any one federal judge doing so much damage on their own, should consider things like this: