The question of birthright citizenship will finally get its first judicial – and hopefully Justicial – scrutiny since the original landmark case that established jus soli – the Law of the Soil – as a principle for determining citizenship of the United States at birth. Already, advocates for what one might call “Citizenship of the Earth” have challenged an executive action by President Donald J. Trump on the subject. But a Texas congressman has pledged to introduce a law clarifying to whom the Law of the Soil applies – and to whom it does not. That will set up the definitive legal challenge on the merits, and clarify a more than century-old misconstruction.
Birthright citizenship – current status
Amendment XIV Section 1 reads in relevant part:
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.
The single case on point from the Supreme Court, defining what this means in practice, is U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). Cornell University’s Legal Information Institute has an excellent syllabus of that case. Wong Kim Ark was born in 1873 to Chinese subjects in the United States on a permanent resident visa. In 1890 the Wongs all returned to China. But in 1895 Wong Kim Ark returned to the United States – and the federal government detained him. This was according to the Chinese Exclusion Act of 1882, which forbade persons of Chinese extraction to set foot in the United States or become naturalized. Wong pleased Amendment XIV, but the government said he, being Chinese, was not “subject to [American] jurisdiction,” whether he was “born in the United States” or not.
The United States government had two key flaws when the case finally reached the Supreme Court. First, the Chinese Exclusion Act was a purely arbitrary law, almost as bad as a bill of attainder. (Bills of attainder declare certain persons, or classes of persons, to be outlaws. Under the Constitution, neither the United States nor any State may make or enforce such a bill.) Second, never once, before this case, did Congress define what subjects a person to the jurisdiction of the United States.
So the Supreme Court had to “wing it.” The Court held:
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the constitution.
After citing several features of English common law, the Court states:
For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
Modern (mis)constructions
That, properly speaking, is where birthright citizenship stands. To be fair, Chief Justice Melville Fuller and Associate Justice John Marshal Harlan, Sr., dissented. What, they asked, about children born abroad to citizens of the United States? Are they now aliens in the country of their parents? The two Justices needn’t have worried. Citizenship by birth, by virtue of parentage, follows from Roman law, which is far older than English common law. Roman law establishes the principle of jus sanguinis – the Law of the Blood – to determine the citizenship of children born in any place.
A natural born citizen, as Emmerich de Vattel defined it in The Law of Nations, qualifies for birthright citizenship by both these laws. When the Laws of the Soil and the Blood give the same answer, a person’s citizenship is in no doubt.
Natural born citizenship is not at issue here. What is at issue is the full power of the Law of the Soil.
Judge Andrew Napolitano, once of the Superior Court of New Jersey (Essex Vicinage), has repeatedly held that the Law of the Soil supersedes any question of the legal status of the parents. But he never had a case before him requiring him to rule on that subject.
Lauren Witzke, once a Senate candidate in Delaware, utterly disparages the Law of the Soil. “‘Magic Dirt’!” she scornfully cries, after the theory that where a person lives, determines his behavior. She would apply the Law of the Blood only to determine birthright citizenship.
Who’s right?
In-between
The Vattel treatment of natural born citizens, and the undeniable precedents of English common law, mandate an in-between doctrine. Under it, the Law of the Soil has its limits. The Court’s opinion in Wong Kim Ark tells us where those limits lie. To paraphrase:
[A] child born in the United States, of parents [not] of [American] descent, who at the time of his birth are [citizens or] subjects of [a foreign state], but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under [any foreign head-of-state or potentate], becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the constitution.
Thus, a child of a parent not having lawful domicile or residence in the United States, or who has such domicile or residence only temporarily, cannot become at time of birth a citizen of the United States by virtue of Amendment XIV Section 1. This leaves out the children of illegal aliens, or the children of mothers holding student, tourist, or other temporary visas. (That last category includes H-1B visas.)
President Donald J. Trump has laid this out in his Executive Order Protecting the Meaning and Value of American Citizenship.
Title 8 USC Section 1401 is the best statutory definition of birthright citizenship on the books today. Paragraph (a) names:
a person born in the United States, and subject to the jurisdiction thereof
as the first category of persons having birthright citizenship. The problem, as ever, is that the Code nowhere defines what “subjects” a person to American “jurisdiction.” So in his Executive Order, Trump names two categories of persons not subject to American jurisdiction:
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Elsewhere, his order clearly states that the children of lawful permanent residents are citizens. Notice also that any child of a citizen or lawful-permanent-resident father can still claim birthright citizenship.
Birthright citizenship – the challenge
Last last night (January 21), Prof. Alan Dershowitz expressed doubt that a President could, by executive action alone, enforce this restriction on birthright citizenship. The Daily Caller quotes him as soundly criticizing applying the Law of the Soil to children of illegal aliens. Furthermore he explicitly rejected the idea of granting citizenship to a child born to any woman visiting as a tourist. But regarding Presidential authority along this line, he said:
I think Congress can pass that law because the Constitution doesn’t define what it means to be subject to the jurisdiction of the United States. I don’t think the president could do that. I don’t think a president can declare that a person who was born in the United States is no longer subject to its jurisdiction. The courts will ultimately decide that, but my best view, as somebody who studied the Constitution for a long time, is that at very least it would take congressional legislation to make a person born in the United States a non-citizen by making that person not subject to the jurisdiction of the United States.
https://rumble.com/embed/v69qmfd/?pub=4teej
The professor need not worry. True, the American Civil Liberties Union has filed a legal challenge to the EO. New Hampshire Indonesian Community Support v. Trump, 1:25-cv-00038. They allege a violation of the Administrative Procedures Act as well as Amendment XIV Section 1. But the second challenge, at least, would fail utterly before another measure that will come from the House of Representatives.
Rep. Brian Babin (R-Texas) will file a bill to define what “subjects” a person “born in the United States” to “the jurisdiction of the United States.” He wrote a first draft on November 17, 2023. It reads in relevant part:
A BILL To amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth.
(b) DEFINITION .—Acknowledging the right of birthright citizenship established by section 1 of the 14th amendment to the Constitution, a person born in the United States shall be considered “subject to the jurisdiction” of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is—(1) a citizen or national of the United States; (2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or (3) an alien with lawful status under the immigration laws performing active service in the armed forces (as defined in section 101 of title 10, United States Code).
Like Trump’s executive order, this law would apply to persons born after this bill passes. No one is prepared yet to revoke citizenship granted before passage. That would immediately deny standing to anyone claiming that this Act, or that EO, would apply to him (or her). It also belies the breathless cries of some that Trump plans to throw actual citizens out of the country.
Why prospective action only?
No doubt many will ask, disparagingly, why such a law cannot apply to persons already possessing “anchor baby” or “birth tourist” birthright citizenship. The answer is that such a measure would violate Article I Section 9 Clause 3 of the Constitution:
No bill of attainder or ex post facto law shall be passed.
American law is never retroactive – or at least is not supposed to be. Arguably it became so when the Clinton Tax Increase forced the reopening of estate settlements to collect higher inheritance taxes. But in 2017, Congress abolished the estate tax for all time, so that question is moot.
Rep. Babin did say of the pending legal challenge:
I welcome this lawsuit because we have to get this into the U.S. Supreme Court. It's probably going to take several years for this to wind its way through the court system. But we want the U.S. Supreme Court to rule on this and give us a final ruling, because it has been misinterpreted.
Nevertheless the current lawsuit would not apply to Babin’s Act. The complaint accuses Trump of usurping the authority of Congress – but when Congress acts, that question becomes moot. So the ACLU would have to file that lawsuit all over again, and only after the federal government denies citizenship to a child born outside the categories the Act describes. (The instant lawsuit mentions now-pregnant women as plaintiffs, thus raising an immediate question of standing.)
This is exactly what CNAV once recommended, to create a controversy that would set further limits on the Law of the Soil. If it fails, then America must amend its Constitution. But the Babin law should not fail. Originalists will see its wisdom, and Institutionalists will recognize the “political” nature of the “definition” and defer to Congress. The Liberals will squawk, but what else is new?
Link to:
The article:
https://cnav.news/2025/01/22/news/birthright-citizenship-ultimate-challenge/
Video:
Wong Kim Ark case:
https://www.law.cornell.edu/wex/united_states_v._wong_kim_ark
https://www.law.cornell.edu/supremecourt/text/169/649
Trump’s citizenship EO:
8 USC 1401:
https://www.law.cornell.edu/uscode/text/8/1401
Video: Alan Dershowitz on birthright citizenship:
The ACLU lawsuit (CourtListener docket):
https://www.courtlistener.com/docket/69560542/new-hampshire-indonesian-community-support-v-trump/
Article describing Rep. Babin’s bill:
Declarations of Truth:
Declarations of Truth Locals Community:
https://declarationsoftruth.locals.com/
Conservative News and Views:
Clixnet Media
