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 14^th 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 14^th 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 14^th 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 21^st 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 14^th 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 20^th 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.