Birthright Citizenship Analysis Ahead of Supreme Court Decision

As the nation awaits a potentially landmark Supreme Court decision on birthright citizenship, the latest episode of Parsing Immigration Policy features renowned legal scholar Richard Epstein for an in-depth discussion of the constitutional, historical, and legal arguments surrounding the issue.

Epstein, emeritus professor at the New York University School of Law and the University of Chicago Law School, senior fellow at the Civitas Institute at the University of Texas at Austin, and author of the new book The Myth of Birthright Citizenship, recently filed an amicus brief in the Supreme Court case Trump v. Barbara. In the brief, Epstein argues that the Citizenship Clause of the Fourteenth Amendment does not automatically confer citizenship on children born in the United States to illegal aliens.

During the conversation, Epstein explains that understanding the issue requires careful textual and historical analysis of the Fourteenth Amendment, particularly the phrase “subject to the jurisdiction thereof.”

According to Epstein, the clause requires more than mere physical presence or birth within the United States. He argues that individuals born owing allegiance to a foreign sovereign, or whose parents are not under the complete jurisdiction of the United States, are excluded from automatic citizenship.

The episode also explores Epstein’s critique of the Supreme Court’s 1898 decision in United States v. Wong Kim Ark, which is widely understood as establishing birthright citizenship under the Fourteenth Amendment. Epstein contends the ruling was wrongly decided and should not be extended to cases involving children born to illegal immigrants.

Drawing on centuries of legal history, Epstein discusses the overlooked Naturalization Acts from 1790 to 1870, the writings of influential thinkers including William Blackstone and Emer de Vattel, and American legal practices before and after the Civil War. He argues that citizenship historically required allegiance and mutual obligations between citizen and sovereign - not simply birth within territorial boundaries.

In his closing commentary, podcast host Mark Krikorian discusses the ongoing legislative battle over funding for CBP and ICE through 2029. Republicans are advancing a budget reconciliation package that could reach the House floor as early as this week or next. Because reconciliation bills can pass with a simple majority, the legislation would bypass the Senate’s traditional 60-vote filibuster threshold. Krikorian highlights that the Democratic Party has embraced positions hostile to the existence of immigration enforcement agencies, creating potential political consequences in upcoming debates and elections.

Host

Mark Krikorian is the Executive Director of the Center for Immigration Studies.

Guest

Richard Epstein is Emeritus Professor at the New York University School of Law and the University of Chicago Law School and Senior Fellow at the Civitas Institute at the University of Texas at Austin.

Links

The Myth of Birthright Citizenship

The Case Against Birthright Citizenship

Brief of Amicus Curiae: Professor A. Epstein in Support of the Petitioners and Reversal

Intro Montage

Voices in the opening montage:

• Sen. Barack Obama at a 2005 press conference.
• Sen. John McCain in a 2010 election ad.
• President Lyndon Johnson, upon signing the 1965 Immigration Act.
• Booker T. Washington, reading in 1908 from his 1895 Atlanta Exposition speech.
• Laraine Newman as a "Conehead" on SNL in 1977.
• Hillary Clinton in a 2003 radio interview.
• Cesar Chavez in a 1974 interview.
• House Speaker Nancy Pelosi speaking to reporters in 2019.
• Prof. George Borjas in a 2016 C-SPAN appearance.
• Sen. Jeff Sessions in 2008 comments on the Senate floor.
• Candidate Trump in 2015 campaign speech.
• Charlton Heston in "Planet of the Apes".