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.
Related
Anchor babies, birthright citizenship, and the 14th Amendment