Is it time to end birthright citizenship?

[Live Life]

I wonder if we will see an uptick in labor inductions or elective C-sections before 2/20/2025.

I bet it will for some as babies born after 2/20/25 will risk not being US citizens under Trump's EO.


Constitutional attorney Mark Smith at 12:00 minute of video discuss the 14th Amendment and Supreme Court ruling in Wong Kim Ark regarding birthright citizenship - https://youtu.be/eFFy61U4Zbc?t=720

14th amend Amendment says the following: "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"

... that other clause ... says ... in addition to being born in the United States, you have to be "subject to the jurisdiction thereof" ...

What does it mean? ... in my opinion of why babies born to illegal immigrants are not American citizens ... because of a 1898 ... Supreme Court decision in the case of United States versus Wong Kim Ark

... Supreme Court said if ... you're not subject to the jurisdiction of the United States, you may be born in the United States which is the first clause of the 14th Amendment, but you're not subject to the jurisdiction of the United States as defined by the second clause of the 14th Amendment

I'm about to solve the problem ... for president Trump and his administration ... if you are born in the United States to parents who are part of a hostile invading class, part of a hostile enemy or an invading class or an invading Army, you also are not subject to the jurisdiction of the United States and thus you're not an American citizen even if you're born here

... give you an example ... Supreme Court case ... 14th amendment ... African-American slaves born in the United States and subject to the protection of the United States ... were now ... American citizens. 

That's where this comes from.  This is about making sure that the freed African-American slaves are American citizens because the 14th amendment was adopted after the Civil War.

[cordex]

There's an interesting point that the language "subject to the jurisdiction thereof" originally came from the Civil Rights act of 1866 which states "all persons born in the United States and not subject to any foreign power".  The implication of that seems to be that "subject to the jurisdiction thereof" might refer to more than just "has to follow our laws" but might actually include not being also subject to someone else's laws.

There is also the fact that Native Americans were not given US citizenship until 1924 which does seem to show that the authors of that amendment did not at the time understand it to be saying that anyone in our borders is automatically "subject to the jurisdiction thereof".  As Native Americans were subjects of their tribal nations and not the US, it was not as simple as a judge pointing out the 14th amendment applies to Native Americans, but legislation had to be passed to explicitly grant them citizenship.

After looking deeper, I don't think this is as obviously the clear cut "Trump is wrong and violating the Constitution" that many are presenting it as.

[dogmush]

I am interested in seeing the court's thoughts on this.  I brought up both the Indian issue and US v. Wong Kim Ark in a discussion on this IRL yesterday.

The 14th was clearly, and explicitly, written to exclude Children of Foreign diplomats and members of the Indian Nations.  SCOTUS has said that the children of Immigrants here legally ARE citizens. That said, those situations are not directly analogous to Illegals in this country having kids.  While *I* think the language of the 14th covers anchor babies, I can see that there are other possible interpretations.  This is one for the courts for sure.

As an aside: the screenshots I've seen from Indian and H1B subreddits talking about no point in even staying here if they can't use their kids to sponsor them makes me want hope the courts agree with Trump AND we kill work visas.  "America is for work and to make money, India is home" and the like.  GTFO.

[Ron]

Considering that tolerating illegal immigration AND birthright citizenship have become a Trojan Horse that has and is destabilizing whole regions of the country, we need to eliminate both as much as possible.

Controlling the flow of immigrants and defining what citizenship is, should be under the authority of the Federal government. The clause is so vague that there is zero reason to assume intent one way or the other.

Regardless of liberal talking points, the Supreme Court should not be granted "infallibility when speaking from the throne".  Stare decisis is not a suicide pact, or at least should not be. If there are court decisions that need to be overturned then let it be so.

This policy should be based on what is best for the country. We can see what we've been doing is not good. Time to adjust or reverse course.
 

[AZRedhawk44]

This policy should be based on what is best for the country. We can see what we've been doing is not good. Time to adjust or reverse course.

That stance is very Kelo v New London.

"A Republic, if you can keep it."

The citizenship is not the root problem.  The root problem is the welfare state.

Look at the American Southwest from the 1850's to the 1940's.  No welfare state.  No real immigration process.  Just choose what side of the border you want to live on, and get on with life and being commercially self sufficient.

[Ron]

That stance is very Kelo v New London.

"A Republic, if you can keep it."

The citizenship is not the root problem.  The root problem is the welfare state.

Look at the American Southwest from the 1850's to the 1940's.  No welfare state.  No real immigration process.  Just choose what side of the border you want to live on, and get on with life and being commercially self sufficient.

The dirt isn't magic. The people are the country. Replace them and you replaced the country with something different.

We've been outvoted on the welfare state issue by the left and all their imports, legal and otherwise, congratulations.

You destroy countries by destroying their cultural roots. We're a dying tree producing rotten fruit.

What made America, America is mostly gone. America is a zombie of alien (foreign) powers wearing it as a skinsuit.

The country actually died some time ago, we're watching the second death, the dying US empire with foreigners fighting over the carcass.

[MechAg94]

There is a little magic in the dirt.  The geography of the continental US is prime real estate for people who are willing to work and develop it.  Also set up nicely for the individual to prosper.  It still takes a people/culture willing to spread out and work to make something of it.  I recall some videos looking at the geography of Mexico by comparison. 


Thomas Sowell has at least one video comparing the geography of Europe to Africa with an eye toward early development of commerce and the middle class.  Europe actually has more miles of coastline than Africa with more natural bays and ports and navigable rivers. 

[Ron]

This article makes the case that the whole issue has been a con job of bad law/interpretation all along.

https://mises.org/power-market/birthright-citizenship-isnt-real

[Brad Johnson]

"all persons born in the United States and not subject to any foreign power". (bolding mine - Brad)

In that passage lies the crux. If the parents are here illegally then they are, by both default and definition, citizens of another country. As citizens of another country (i.e. a "foreign power") they and their dependent children, both born and unborn, are subject to that country's power. As such, they do not meet what is a clear and unambiguous birthright citizenship criteria.

...just like the clear and unambiguous wording of the 2nd Amendment, which we all know would never be bastardized, misconstrued, or subverted in any way.

Brad

[cordex]

In that passage lies the crux. If the parents are here illegally then they are, by both default and definition, citizens of another country. As citizens of another country (i.e. a "foreign power") they and their dependent children, both born and unborn, are subject to that country's power. As such, they do not meet what is a clear and unambiguous birthright citizenship criteria.

...just like the clear and unambiguous wording of the 2nd Amendment, which we all know would never be bastardized, misconstrued, or subverted in any way.

To be clear, "not subject to any foreign power" came from the 1866 Civil Rights Act, not the 14th Amendment.

[Brad Johnson]

To be clear, "not subject to any foreign power" came from the 1866 Civil Rights Act, not the 14th Amendment.

Acknowledged. What is does is set legal precedent.

Brad

[cordex]

Acknowledged. What is does is set legal precedent.

It may give us insight into the mindset of the creators of the 14th, but I don't think it sets any precedent.

[JN01]

Interesting discussion on US v. Wong Kim Ark.  Woman argues that SCOTUS limited birthright citizenship. https://www.youtube.com/watch?v=KYxqQqCv2Zs&list=WL&index=1

[Live Life]

This article makes the case that the whole issue has been a con job of bad law/interpretation all along. https://mises.org/power-market/birthright-citizenship-isnt-real

That article aligns with Mark Smith's take - https://armedpolitesociety.com/index.php?topic=70325.msg1462249#msg1462249

if you are born in the United States to parents who ... are not subject to the jurisdiction of the United States ... you're not an American citizen even if you're born here

From the article:

In historical practice nearly everywhere, citizenship depends largely on the citizenship of parents, or on the parents’ place of birth, and not on the place where parents happen to temporarily reside when the child is born. Thus, historically and globally, the child of foreign nationals is himself a foreign national. This is true, for instance, of children born to American nationals overseas.

[cordex]

This is a pretty good analysis from a law professor: https://youtu.be/SLJKBmJQD5s?si=-sHV2SSx_N_kzp4j

He comes down on the birthright citizenship side from a Constitutional perspective.

[Live Life]

I have been reviewing Heritage Foundation's senior legal fellow Amy Swearer's 75 page legal review article "SUBJECT TO THE [COMPLETE] JURISDICTION THEREOF: SALVAGING THE ORIGINAL MEANING OF THE CITIZENSHIP CLAUSE" - https://static.heritage.org/legal-and-judicial/birthright-citizenship/Law%20Review%20Final%20Print.pdf

She talks about "complete and partial subjection to United States jurisdiction" where citizenship requires "complete jurisdiction" as Native Indians born in the US at the time of 14th Amendment writing did not have complete subjection to US jurisdiction rather "partial subjection" therefore did not have US citizenship until Congress wrote the Indian Citizenship Act of 1924.

2. Two Types of “Jurisdiction”

Some proponents of universal birthright citizenship have argued that the Citizenship Clause does not distinguish between the immigration statuses of the US-born child’s parents. They insist that children born to alien parents are “subject to the jurisdiction” of the United States ...

... This understanding of a “complete” jurisdiction and allegiance, as opposed to a lesser degree of jurisdiction and allegiance, is evident throughout the debates over the language defining citizenship in both the Civil Rights Act and the Fourteenth Amendment. Congress explicitly considered this distinction and intentionally framed the language of citizenship in a way it that contemporary legal scholars understood as referencing only the higher, complete level of jurisdiction. This intentional consideration is present from the very beginning. The Civil Rights Act underwent several major revisions concerning its definition of citizenship.

... "It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’"  As the Senate concluded debate on the Citizenship Clause, Senator George Henry Williams (R-OR) ... explained the view that the Amendment distinguished between complete and incomplete jurisdiction, and therefore already excluded Indians with tribal ties ...

3. Subject to Complete Jurisdiction as a Lack of Foreign Allegiance

But what does it mean, precisely, to be subject to the complete jurisdiction of the United States and not merely subject to its sovereign authority?

... Unlike the tribal Indian who owes partial allegiance to his quasi-foreign tribal government, and unlike the temporary sojourner who has not taken steps to formally break the ties of complete allegiance to the country of his lawful permanent residence, the freed slave had but one natural allegiance—the United States, under whose sovereign power and protection he was born and permanently resident. It could not logically belong elsewhere.

Senator Trumbull’s summary of the Civil Rights Act for President Johnson offers another insight into the meaning of complete jurisdiction and allegiance—the importance of domicile as a determining factor ... Civil Rights Act “declares ‘all persons’ born of parents domiciled in the United States ... to be citizens of the United States.”

His paraphrase is consistent with the debates leading up to the bill’s passage and the purpose of excluding from citizenship the US-born children of temporary sojourners, who are presumed to be still meaningfully subject to the government of the country to which their parents intended to return.

I think there's definite argument for why children born to illegal immigrant parents, who are already citizens of another country thus having incomplete or "partial subjection to US jurisdiction", should not be granted US citizenship - https://www.youtube.com/watch?v=HctUHo0WM1Q

[dogmush]

I think there's definite argument for why children born to illegal immigrant parents, who are already citizens of another country thus having incomplete or "partial subjection to US jurisdiction", should not be granted US citizenship - https://www.youtube.com/watch?v=HctUHo0WM1Q

I think you are correct that an argument could be made (and likely will be).  I have actually changed my mind since my first post in this thread when I assumed an amendment would be needed.  The Indian subject to their tribe and being specifically excluded from the 14th during the Senate hearings on the clause is a *very* compelling arguments and close corollary to anchor babies.

For Devil's Advocate sake: The obvious retort is that the framers of the 14th were familiar with the concept of "complete" or "partial" jurisdiction since they wrote about it.  But when it came time to pen the actual amendment, they chose to not include the word "complete" in there.  So that being subject to ANY jurisdiction of the United States fulfills the requirement.

I do not know how compelling that argument will be to judges, or for that matter if any of the 9 SCOTUS judges are open to being convinced at this point.  They have to know this case is headed their way, and may well have made up their minds already. 

[Live Life]

For Devil's Advocate sake: The obvious retort is that the framers of the 14th were familiar with the concept of "complete" or "partial" jurisdiction since they wrote about it.  But when it came time to pen the actual amendment, they chose to not include the word "complete" in there.  So that being subject to ANY jurisdiction of the United States fulfills the requirement.

Amy Swearer address that question starting page 29 of the article - https://static.heritage.org/legal-and-judicial/birthright-citizenship/Law%20Review%20Final%20Print.pdf

Fourteenth Amendment ... if Congress intended “subject to the jurisdiction” to mean
something more akin to “owing permanent, undivided allegiance,” why did it not revise the language accordingly?

While these questions might initially raise concerns, they are easily answered by a review of the broader context. The difference in the language can be explained, in large part, by the heated debate over how best to ensure that Native Americans with tribal relations were excluded from citizenship.  Senators routinely pointed out, both for the Civil Rights Act and the Fourteenth Amendment, that there were possible problems with using either “not subject to any foreign power” or “Indians not taxed” as the phrase for Indian exclusion ... The confusion over whether the language of the previous Act was the clearest way of excluding tribal Indians was significant enough that measures to reintroduce it into the Amendment failed. In the end, Senator Howard’s proposed language of “subject to the jurisdiction thereof” survived under the general consensus that it provided an adequately clear bar for citizenship on the basis of undivided, complete allegiance to the United States government—a bar they understood as excluding both those who owed allegiance to a foreign power and Indians who owed allegiance to tribal governments.

Why, then, not simply use the term “allegiance” instead of “jurisdiction?”

Recall, once again, Senator Trumbull’s statements on the history of the language of the Civil Rights Act. The use of the term “allegiance” was considered and explicitly rejected because it could have been construed under the English common law as including all those owing “a sort of allegiance,” such as temporary sojourners and Indians born within the sovereign dominions of the United States ... An adequate republican substitute for the feudal concept of “allegiance” was that of “jurisdiction,” particularly in the sense intended by Congress: complete subjection to jurisdiction that defines those who are part of the “American people,” as opposed to those who are temporary residents or otherwise partially subject to the jurisdiction of another sovereign in a meaningful way.

Finally, and perhaps most importantly, the Civil Rights Act continued to operate as a valid federal law for the next seventy years, codified under section 1992 of the Revised Statutes of the United States, a precursor to the U.S. Code. It was not redacted, stricken, or repealed in various editions of the codified federal law, meaning that the United States effectively had two definitions of “citizenship”—one statutory and one constitutional—coexisting in the same legal framework ... This significantly strengthens the argument that the Civil Rights Act and the Fourteenth Amendment were understood primarily as accomplishing the same purpose, and that those who are “subject to the jurisdiction” of the United States were understood as “not being subject to any foreign power.”

[dogmush]

Amy Swearer address that question starting page 29 of the article - https://static.heritage.org/legal-and-judicial/birthright-citizenship/Law%20Review%20Final%20Print.pdf

Snip

Senator Howard’s proposed language of “subject to the jurisdiction thereof” survived under the general consensus that it provided an adequately clear bar for citizenship on the basis of undivided, complete allegiance to the United States government—

Clearly, it did not.

[Live Life]

Clearly, it did not.

And why we are where we are in 2025. I have a feeling case against President Trump's EO will march right up to the Supreme Court to decide.


More from Amy Swearer's article regarding "complete jurisdiction" - https://static.heritage.org/legal-and-judicial/birthright-citizenship/Law%20Review%20Final%20Print.pdf

Citizenship Clause and complete jurisdiction were espoused in 1891 by then-recent Supreme Court Justice Samuel Miller, who observed that the U.S.-born children of aliens temporarily residing in the United States are not born subject to its jurisdiction and are not U.S. citizens. (Page 35)

Notably, similar reasoning was employed in at least two 1876 international arbitration decisions that considered the citizenship under U.S. law of individuals born in the United States to alien parents only temporarily residing in the country.

In Suarez v. Mexico ... Adopting the same line of reasoning as the Supreme Court, the arbitrator determined that ... “the mere fact of his having been born at New York [would not] be sufficient evidence of citizenship.” This was because “his parents were both aliens at the time of his birth ... He was therefore born subject to a foreign power, despite his birth on U.S. soil.

A different arbitrator reached a similar conclusion in Del Barco v. Mexico, where a man was born in the United States to foreign parents but left the U.S. for Mexico with his mother at the age of nineteen. Because his parents were not naturalized in the U.S. before his birth ... the arbitrator determined that he retained the nationality of his parents despite his birth in the U.S. In other words, they and their U.S.-born child remained subject to a foreign power and were not subject to the complete jurisdiction of the United States for purposes of the Citizenship Clause. (Pages 40-41)

In 1884, the Supreme Court solidified the dicta ... in Elk v. Wilkins ... to directly address the Citizenship Clause.

At issue in Elk was whether an Indian born into a tribe and never naturalized under federal law automatically became a citizen when he voluntarily severed his tribal relations and took up residence among American citizens in a U.S. state. The Indian, John Elk, argued that he was born in the United States and had surrendered himself to its complete jurisdiction, making him a citizen entitled to vote in the state of his residence ...

The Court held that Elk was not a citizen under these circumstances and adopted the view of the Amendment’s framers and ratifiers that birthright citizenship did not apply to those born subject to United States jurisdiction in only a limited sense. It explained that the Citizenship Clause’s jurisdictional element meant “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Further, this direct and immediate allegiance must be owed at the time of the birth, and could not be later acquired absent naturalization. Elk had not been born owing direct and immediate allegiance to the United States because the “members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States.”

... Elk Court ... affirmed that the Fourteenth Amendment was intended to constitutionalize the provisions of the Act, including the underlying assumption that those born subject to a foreign power were not “subject to the jurisdiction of the United States” for purposes of the Citizenship Clause. (Pages 41-43)

[Live Life]

More from Amy Swearer's article regarding Supreme Court Wong Kim Ark ruling which dealt with citizenship of US born child of legal "domiciled" immigrants - https://static.heritage.org/legal-and-judicial/birthright-citizenship/Law%20Review%20Final%20Print.pdf

The Civil Rights Act and Fourteenth Amendment were not measures to reinstate the jus soli of pre-Revolution common law as a means of overturning Dred Scott ... in other words, to apply them, at long last, to the freed slaves and their descendants in the same manner they had long been applied to those of European descent.

... reliance on Wong Kim Ark to support the proposition that the Fourteenth Amendment’s concept of jurisdiction or allegiance is a reflection of jus soli is sorely misplaced. (Pages 51-53)

Pure jus soli simply does not recognize domicile or lawful presence as relevant to the determination of allegiance.  But this was not, in fact, the Court’s conclusion. Indeed, the majority went out of its way to limit its application of jus soli to the specific instances of permanent domicile and lawful presence, and seemed to tie those two factors into its conception of jus soli:

"The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens ... The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

... Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are “subject to the jurisdiction thereof,” in the same sense as all other aliens residing in the United States.

... The importance of domicile, in particular, to the Wong Kim Ark majority’s conclusion cannot be overstated" (Pages 53-55)

So to this layperson, "domicile" means permanent home or legal residence important for taxation.  So while Wong Kim Ark's parents were Chinese subjects and not US citizens, they were "legal" residents subject to taxation for US income tax.  And Supreme Court ruled US born child of parents "domiciled here" is subject to the jurisdiction of the United States and thus citizen.

But parents "illegally" residing in the US and not subject to US jurisdiction/income tax (Because they are in the country illegally and not recognized by the US government) are not "domiciled here" and thus child born to them not a US citizen (Rather citizen of their home country).

[dogmush]

So to this layperson, "domicile" means permanent home or legal residence important for taxation.  So while Wong Kim Ark's parents were Chinese subjects and not US citizens, they were "legal" residents subject to taxation for US income tax.  And Supreme Court ruled US born child of parents "domiciled here" is subject to the jurisdiction of the United States and thus citizen.

But parents "illegally" residing in the US and not subject to US jurisdiction/income tax (Because they are in the country illegally and not recognized by the US government) are not "domiciled here" and thus child born to them not a US citizen (Rather citizen of their home country).

Your read there is wrong on both accounts.

Wong Kim Ark's parents were not subject to US Income Tax. There was no Federal Income Tax in 1898.

Conversely illegal aliens in the US ARE subject to Federal Taxation.  There is no loophole in Tax Law for illegal income. (Ask Al Capone).  They are supposed to apply for a Tax Payor ID and remitt taxes like everyone else.

Tax status is the wrong thing to hang even a portion of this argument on.

[Live Life]

I stand corrected on taxation and it does not affect birthright citizenship (I was thinking of those not paying income tax which is another crime of tax evasion).  This from 2024 report to Congress "The Cost of Illegal Immigration to Taxpayers" - https://www.congress.gov/118/meeting/house/116727/witnesses/HHRG-118-JU01-Wstate-CamarotaS-20240111.pdf

Tax Payments by Illegal Immigrants ... the notion that they do not pay taxes is also mistaken. First, everyone pays some sales tax and user fees. Even renters pay some property taxes indirectly through their rent ... We have previously estimated that more than half (55 percent) of illegal immigrant earnings are subject to taxation.

But as to Amy Swearer's pointing out of illegal immigrant parents not being “subject to the jurisdiction" of the United States and lacking "lawful presence/domicile" in the US to allow citizenship to their children remain.