ICYMI: The Case Against Birthright Citizenship - A Constitutional and National Imperative
"Birthright citizenship" isn't required by the Constitution, no matter how many pundits tell you otherwise. Tomorrow, the Supreme Court hears oral arguments to decide the matter once and for all.
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NOTE: Tomorrow, the U.S. Supreme Court will hear oral arguments in Trump v. Barbara, addressing whether the 14th Amendment mandates birthright citizenship. I have argued strenuously that it does not, including in a debate last year with a Yale Law professor. This article, originally published shortly after President Trump took office, explains what you need to know about this arcane but contentious issue. I make no predictions as to the outcome, but as you’ll see, constitutionally speaking, Trump should win. — RDM
by Rod D. Martin
January 29, 2025
Donald Trump’s executive order banning so-called “birthright citizenship” was immediately (though temporarily) blocked by a Federal judge, who called it “blatantly unconstitutional”.
He’s wrong. Birthright citizenship is not, in fact, required by the 14th Amendment. Don’t believe me? Ask yourself why the children of foreign ambassadors or servicemen born here are not U.S. citizens.
Because they aren’t. So why are the children of people who’ve entered the country illegally?
The principle of birthright citizenship, as it is currently interpreted in the courts, poses a significant and growing threat to the nation’s sovereignty, social cohesion, and long-term stability. The idea that mere birth on U.S. soil, regardless of parental allegiance, automatically confers American citizenship is not only a misreading of the 14th Amendment but a dangerous policy that has been exploited for decades.
In reality, this absurd modern interpretation is a historical and legal distortion that undermines the integrity of American citizenship, incentivizes illegal immigration, and facilitates a systematic erosion of national identity.
It is time to restore the original understanding of citizenship, which is based on allegiance and jurisdiction, not mere geography.
The Original Meaning of the 14th Amendment
The current misinterpretation of birthright citizenship stems from a deliberate distortion of the 14th Amendment’s Citizenship Clause. The amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The key phrase, “subject to the jurisdiction thereof,” has been twisted over time to mean anyone physically present in the country at birth. But this was never the intent of the amendment.
As constitutional scholar John C. Eastman has argued, “subject to the jurisdiction” was meant to exclude those who owed allegiance to foreign nations. This understanding is reinforced by the historical context in which the amendment was drafted. Its primary purpose was to grant citizenship to freed slaves, who had been wickedly denied it by the slave states, and later nationally under the infamous Dred Scott decision.
The authors of the 14th Amendment wanted to ensure that the freed slaves were granted citizenship, and that the former slave states could not abridge or deny it. But they never intended for the amendment to grant automatic citizenship to the children of foreign nationals, particularly those who enter the country illegally or remain on temporary visas.
Don’t believe me? Here’s what the U.S. Citizenship and Immigration Services website has to say:
A person born in the United States to a foreign diplomatic officer accredited to the United States is not subject to the jurisdiction of United States law. Therefore, that person cannot be considered a U.S. citizen at birth under the 14th Amendment to the United States Constitution.
Wait, what?! Did they just say that if you’re not “subject to the jurisdiction of United States law” then the citizenship provision of the 14th Amendment doesn’t apply to you?
Why yes. Yes they did. And this isn’t a new thing: it’s always been the law.
So what does that tell us about people who are not only foreign citizens, they’re actually here illegally? If someone trespasses in your house, do their children automatically gain partial ownership of it? The very idea is absurd.
Every nation has the right to define its citizenry based on allegiance and legal authority. Moreover, the authors of the 14th Amendment, and the states that ratified it, understood it to uphold that principle. Allowing the children of foreign nationals to claim citizenship simply by birthright, without regard for the parents’ legal status or commitment to American values, erodes this sovereign authority.
It also creates an enormous incentive to abuse the system.
Historical and Legal Precedents
The Supreme Court affirmed this original understanding of the 14th Amendment in its earliest interpretations. In The Slaughterhouse Cases (1872), the Court explicitly stated that the phrase “subject to its jurisdiction” was intended to exclude children of foreign diplomats, consuls, and foreign nationals born on U.S. soil.
The Court reaffirmed this position in Elk v. Wilkins (1884), where it held that being “subject to the jurisdiction” of the United States meant more than mere territorial presence. It required one to be fully and exclusively subject to U.S. political authority, owing “direct and immediate allegiance.” The ruling made clear that jurisdiction, in the constitutional sense, is not a vague or partial obligation but a complete and exclusive bond between the individual and the nation.
In opposition to these cases, proponents of birthright citizenship cite the 1898 Supreme Court case United States v. Wong Kim Ark as justification for the modern policy. However, this case is misrepresented. Wong Kim Ark was born in the U.S. to parents who were legal, permanent residents—not illegal immigrants or foreign tourists seeking to exploit the system.
Rather than establishing precedent for “anchor babies”, the ruling actually reaffirmed citizenship for children of lawful residents who had established long-term ties to the nation, not for those with no legal right to be in the country.
What’s more, no Congress, president, or court has ever explicitly mandated that birthright citizenship applies to children of illegal immigrants. Instead, this has been the product of bureaucratic overreach, judicial activism, and Democrats’ desire to flood the system with illegals. The American people have never had a say in this dramatic redefinition of their nation’s citizenship laws. It was imposed without debate, without consent, and without a proper legal foundation.
The Consequences of Birthright Citizenship
The unchecked application of birthright citizenship has led to a host of serious consequences for the United States. Among the most damaging is the phenomenon of “anchor babies,” where foreign nationals exploit the policy to secure U.S. citizenship for their children, thereby opening the door to chain migration. This practice has created a loophole that undermines the integrity of America’s immigration laws and incentivizes illegal entry.
The numbers are staggering. Each year, tens of thousands of children are born in the U.S. to illegal immigrants, immediately granting them citizenship. These children, in turn, become conduits for further immigration, as their parents and extended family members use their status as leverage to obtain legal residency.
This is not at all how the U.S. immigration system was designed to function. Citizenship should be a privilege granted to those who have demonstrated commitment and allegiance to the nation and their descendants, not an accident or, even worse, deliberate fraud.
This anchor baby policy places an enormous burden on American taxpayers. Children of illegal immigrants and birth tourists often take advantage of America’s generous welfare programs, public education, and healthcare services, all funded by the American taxpayer. Hospitals in border states have been especially overwhelmed by the costs associated with providing care for non-citizens who give birth in the U.S. This strain on resources diverts funding away from American citizens who need assistance, and forces taxpayers to subsidize the consequences of criminal activity and fraud.
A Threat to National Identity
Beyond the financial costs, birthright citizenship poses a deeper threat to the very fabric of American identity. Citizenship is more than just a legal status; it is a sacred bond that ties individuals to the principles, traditions, and responsibilities of a nation. When citizenship is reduced to a mere accident of birth, it loses its meaning and value.
Let’s be clear: anyone can be an American. Anyone who shares a belief in our uniquely special system is welcome. But random people who don’t believe in it, and won’t even respect our laws, are not.
Nations throughout history have understood that citizenship should be based on allegiance, not geography. Even Canada, often cited as a model for leftist immigration policies, has considered revising its birthright citizenship laws due to widespread abuse. European countries have overwhelmingly rejected birthright citizenship, instead requiring at least one parent to be a legal citizen or permanent resident. These nations recognize that a nation’s people must share a common commitment to its laws and values, not merely occupy its territory.
America must reassert this principle. If citizenship is to mean anything, it must be based on genuine ties to the nation. A system that grants citizenship indiscriminately to those who do not pledge allegiance, respect its laws, or intend to integrate undermines and ultimately destroys the very concept of national identity.
Just ask the barbarians who overran Rome.
Restoring the True Meaning of Citizenship
The question now is not whether birthright citizenship should be revisited, but how quickly it can be corrected. The U.S. Constitution does not require this misinterpretation, and a simple act of Congress, or even President Trump’s executive order, could clarify that children born to illegal immigrants or temporary visitors are not automatically citizens.
And while Trump’s EO will likely be taken up by the Supreme Court (perhaps surviving, perhaps not), Congress clearly has the power to legislate on matters of citizenship, and multiple legal scholars have argued that a properly crafted statute could withstand constitutional scrutiny.
But Trump is right. Instead of waiting for another decade of judicial battles, he has now issued clear guidance to federal agencies that the Citizenship Clause does not apply to illegal immigrants. Doing so is almost certainly the necessary first step to a long-overdue national debate, and to a proper resolution.
Conclusion
Birthright citizenship, as it is currently interpreted, is a misreading of the 14th Amendment and a severe threat to American sovereignty. It has fueled illegal immigration, burdened taxpayers, and eroded the fundamental meaning of citizenship.
The United States, like any sovereign nation, has the right to define its citizenry based on allegiance, not geographic happenstance. By restoring the correct interpretation of the 14th Amendment, America can ensure that citizenship remains a privilege tied to loyalty, responsibility, and national unity.
It can also make sure that its system, and its taxpayers, aren’t abused. Citizenship should not be an entitlement granted to those who flout the nation’s laws—it should be reserved for those who respect, contribute to, and uphold the values of the United States. The future of the country depends on it.
So yet again, the pundits are wrong, Donald Trump is right, and the Supreme Court is very likely to uphold him yet again.
A few thoughts on birthright citizenship
https://torrancestephensphd.substack.com/p/about-this-birtright-citizenship
This passage in your post illustrates well the flaw in your reasoning:
"The Court reaffirmed this position in Elk v. Wilkins (1884), where it held that being “subject to the jurisdiction” of the United States meant more than mere territorial presence. It required one to be fully and exclusively subject to U.S. political authority, owing “direct and immediate allegiance.” The ruling made clear that jurisdiction, in the constitutional sense, is not a vague or partial obligation but a complete and exclusive bond between the individual and the nation.”
No non-citizen immigrant, legal or otherwise, can satisfy the requirement that jurisdiction means ‘a complete an exclusive bond between the individual and the nation’. This is obvious. Even a legal permanent resident cannot offer this. And their child cannot. They do not have exclusive and complete bond with the United States, pretty much however you define that. They will have stronger bonds with their own country, not for sentimental reasons, but because they are citizens of that country and not the US. They can be deported from the US but not from their own country. Their visa or residency status is subject to review, time, and revocation. Any number of hypotheticals demonstrate the point: a green card holder from France who has lived in the US for say six years who has a child in the US is not going to have ‘exclusive and complete bonds’ with the United States. He’s still got a French passport. His wife does. The child is entitled to it.
So your argument doesn’t work since it leads to the inevitable conclusion that the Amendment actually means “anyone born in the United States whose parent is a citizen is a citizen”. This is a jus sanguinis law, pretty much. No new world country had that in the 19th century and I know of only one that has it now. It also would’ve been easy to draft if that was the intent.
So what the jurisdiction clause means remains a matter of debate. It cannot mean what you want it to mean (see above and other replies). Maybe it means more than being subject to trespass laws, but you’ve not been able to cut through it with a sound position. Maybe there is some halfway house but it remains elusive as best I can tell.
We shall see what the Court makes of it.