Birthright Citizenship: Game On!
Claremont Institute scholars, including me, Ed Erler, Tom West, John Marini, and Michael Anton, President Trump’s incoming Director of Policy Planning at the State Department, have been contending for years—decades, really—that the 14th Amendment’s Citizenship Clause does not provide automatic citizenship for everyone born on U.S. soil, no matter the circumstances. Other prominent scholars, such as the late University of Texas law Professor Lino Graglia, University of Pennsylvania Professor Rogers Smith, and Yale Law Professor Emeritus Peter Schuck, have come to the same conclusion based on their own extensive scholarly research...
Our argument is straightforward. The text of the 14th Amendment contains two requirements for acquiring automatic citizenship by birth: one must be born in the United States and be subject to its jurisdiction. The proper understanding of the Citizenship Clause therefore turns on what the drafters of the amendment, and those who ratified it, meant by "subject to the jurisdiction thereof." Was it merely a partial, temporary jurisdiction...? Or does it instead apply only to those who are subject to a more complete jurisdiction, one which manifests itself as owing allegiance to the United States and not to any foreign power?...
Happily, we don’t need to speculate, as they were asked that very question. They unambiguously stated that it meant "complete" jurisdiction, such as existed under the law at the time, the Civil Rights Act of 1866, which excluded from citizenship those born on U.S. soil who were "subject to a foreign power."...
The Supreme Court confirmed that understanding (albeit in dicta) in the first case addressing the 14th Amendment...
All of this matters a great deal because on the first day of his second term in office, President Trump issued an executive order, "Protecting the Meaning and Value of American Citizenship," which adopted the view of the Citizenship Clause I and other Claremont scholars have espoused. It directs every department and agency of the U.S. government to accept our view henceforth as the correct interpretation of the Constitution's Citizenship Clause...
... the Supreme Court will now, for the first time, have the opportunity to acknowledge that the Claremont Institute’s long-standing view of the Citizenship Clause is the correct one. With the Court currently composed of more originalist justices than has been the case in more than a century, we anticipate with great optimism a careful and considered assessment of the clause and a restoration of the fundamental notion that ours is a country rooted in consent, not in the old feudal notion of jus soli that was so thoroughly rejected in our Declaration of Independence.
Birthright Citizenship: A Response to My Critics, by Michael Anton, American Mind, 28 January 2025:
... The American people did not willingly, knowingly, or politically adopt birthright citizenship. They were maneuvered into it by the Left and by the Left-allied judiciary. They’ve never debated it or voted on it. They’ve simply been told that it’s required by the Constitution.
Polling shows that a sizable number of Americans—though not a majority—support ending birthright citizenship. Were the nation to hold an honest debate, those numbers might rise (indeed, I’m confident they would). Of course, that’s precisely what the liberals and their allies on the “conservative Left” fear. It’s not only their legal arguments that are weak; their political arguments are even weaker. Since they know they would lose the debate, they are desperate not to have it. Which is why they demonize anyone who tries to raise it...
The Original Purpose of the 14th Amendment
Perhaps one reason people are so confused about the meaning of the 14th Amendment is because they have forgotten its fundamental purpose, and the context of the debate.
The purpose of the 14th Amendment was to settle forever the question of the citizenship status of freed slaves and of other free blacks then living in America. That was also the core purpose of the Civil Rights Act of 1866...
Birthright citizenship—as I and others have argued—is a magnet for illegal immigration, an ongoing problem that worsens many of our other problems. The longer we continue the practice, the more illegal immigration we will get, with all its ensuing effects. As I have argued elsewhere, the United States does not need more people. We need to do a better job meeting the needs of the citizens we already have...
Related
Anchor babies, birthright citizenship, and the 14th Amendment