Congressional Debate on the 14th Amendment
Posted on 12/16/2025 6:10:52 AM PST by MtnClimber
On his first day in office in his second term, January 20, 2025, President Trump issued a collection of Executive Orders. One of those was number 14160, titled “Protecting the Meaning and Value of American Citizenship.” EO 14160 seeks to do away with the long-standing practice of various U.S. agencies of recognizing U.S. citizenship of anyone born in the United States, even if that person’s parents were not legal residents or otherwise legally in the country at the time of the birth. From EO 14160:
It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person's mother was unlawfully present in the United States and the person's 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 was lawful but temporary, and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth.
Following issuance of EO 14160, multiple lawsuits were brought in courts around the country seeking injunctions to compel the government to recognize the citizenship of various individuals born here to illegal aliens. Several courts promptly issued injunctions blocking Trump’s Order, all of them on a nationwide basis as far as I can determine. In June, three of those cases, consolidated under the name Trump v. CASA, came before the Supreme Court on the question of whether a District Court could issue a nationwide injunction to block the Order everywhere. The Supreme Court invalidated the nationwide aspect of the injunctions. However, the Court did not consider the merits of whether President and executive agencies could refuse to recognize citizenship of children born here to illegal aliens.
But now there are petitions before the Supreme Court asking it to consider this question of so-called “birthright” citizenship on the merits. The Court is widely expected to take up the issue in its current term. So, what is the right answer?
In terms of relevant legal text, it all comes down to a few words from Section 1 of the Fourteenth Amendment:
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.
Does that sound open and shut? It all depends on the meaning of the phrase “and subject to the jurisdiction thereof.” If children of illegal aliens are “subject to the jurisdiction” of the United States, as that phrase is interpreted in the context of the 14th Amendment, then they are entitled to citizenship; and if children of illegal aliens are not properly viewed as “subject to the jurisdiction” of the United States, then they are not entitled to citizenship.
Which is right? It turns out that there are some pretty good arguments on both sides. The most often-cited arguments by the contending parties in fact rarely mention the text of the Amendment. On the side of those supporting birthright citizenship, the most oft-cited point is that the federal government has operated for decades as if birthright citizenship were the law, granting status and official documents to anyone who can prove they were born in the country. But then, it is completely fair to ask if there has been a solid basis for that. If some federal agencies were operating outside the law, it would certainly not be the first time. On the other side, opponents of birthright citizenship point to the extreme case of the “anchor baby,” where a pregnant woman crosses the Rio Grande illegally, immediately gives birth, takes pictures, and goes back home. Could it really be that that baby is entitled to show up twenty years later with the pictures as proof and claim all the rights and privileges of U.S. citizenship? (In fact, that has long been the operating basis of U.S. government policy, whether it seems to make sense or not.)
Looking for a credible advocate of the birthright citizenship position to state the basis of the case, I come upon an interview in Harvard Law Today from January 24, 2025 of Harvard Professor Gerald Neuman. The date of the interview was immediately after issuance of Trump’s EO. Not at all to my surprise, Neuman treats the case for birthrate citizenship as obvious, and the views of anyone taking the opposite position as having “either a crazy or a dishonest interpretation of the Constitution” — his words. Here is the gist of Neuman’s argument:
After the Civil War, with slavery abolished, there were now formerly enslaved people and free Black residents who had never been enslaved but hadn’t been considered citizens in their states or by the Supreme Court. To protect them and their children and descendants, Congress passed the Civil Rights Act in 1866 and then put the rule in the Constitution, in the 14th Amendment, that everyone who was born in the United States and subject to the jurisdiction of the United States is a citizen of the United States. By the time this entered the debates in the 1860s, this was an issue not only with regard to Black people, but also with regard to the Chinese who had started coming to the west coast. It was explicitly discussed whether the rule would include the Chinese, and it was clearly decided that, yes, it would apply to people of any race.
Neuman then cites the a Supreme Court case from 1898, United States v. Wong Kim Ark. Mr. Wong had been born in the U.S. to Chinese parents. As a young adult, he made a trip to China, and when he tried to return he was refused entry. The Supreme Court said that Mr. Wong was entitled to re-entry as a citizen. For Neuman, this completely settles the matter.
Are you persuaded? As usual with advocates of the progressive orthodoxy, Professor Neuman has left out a few key things that he hopes you will not be aware of. For me, the most significant point for the other side is the Indian Citizenship Act of 1924. Here is the entire relevant text of that statute:
BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.
That’s right — despite being born in the United States and after ratification of the 14th Amendment in 1870, Indians were not treated as citizens until this Act in 1924. Clearly, the thinking was that their membership of sovereign tribes made them not “subject to the jurisdiction” of the United States within the meaning of the Amendment. So what about today’s illegal aliens makes them significantly different from Indians pre-1924?
Neuman points to the Supreme Court’s 1898 Wong case as if it settles the argument, but that case falls rather far short of bringing his argument all the way home. The Wong case pre-dates almost all restrictions on immigration into the U.S., and there was no assertion that Mr. Wong’s parents were in the country illegally; and thus the case did not address at all the status of children born in the U.S. to illegal aliens.
An example of a commentator making the case against birthright citizenship is Richard Epstein in this piece at the Civitas Institute from January 28, 2025. Here is Epstein on the significance (or lack thereof) of the Wong case:
[The Wong] decision at no point addressed, either explicitly—the word “illegal” is not used in the opinion—or implicitly, the legal status of the children born in the United States of illegal aliens. Rather, that case dealt explicitly with the common situation where the plaintiff was the child of lawful permanent aliens in the United States who had long engaged in a lawful business and were denied the right to become citizens under the Chinese Exclusion statute. The gist of Justice Horace Gray’s opinion was that their son could not be barred from a return to the United States because, as the child of lawful residents, he consistently held and asserted U.S. citizenship from birth, which was rightly awarded as an incentive for these individuals to strengthen their allegiance to this country.
Epstein’s position is that the granting of birthright citizenship to children of illegal aliens creates a perverse incentive structure that incentivizes breaking the law:
[T]he entire civil and criminal law is organized to suppress illegal conduct and to support legal conduct. But the opposite is true with birthright citizenship, which gives a strong spur for illegal conduct.
Epstein concludes:
No one at the time or now has advanced a coherent explanation as to why birthright citizenship is desirable as a matter of principle. So why assume that it was adopted silently through the back door?
So on balance, I regard this as an open question. Given that it is an open question, I regard Epstein’s point about perverse incentives as much more significant than Neuman’s point about longstanding agency practices.
I think that the phrase “subject to the jurisdiction thereof” in the 14th Amendment should exclude children of undocumented immigrants. Otherwise you have problems like the Chinese billionaire having many US born children via surrogates.
It’s not an open question if we consider legislative intent — that the 14th Amendment was adopted for freed slaves, not to create a birth tourism industry or to grant citizenship to children of invaders or sneak-ins.
It’s not an open question if we consider legislative intent — that the 14th Amendment was adopted for freed slaves, not to create a birth tourism industry or to grant citizenship to children of invaders or sneak-ins.
Nope, intended for freed slaves.
You can say that again!
But, seriously, you don’t start there. In construing a statute, you start by looking at the statutory language. Interpret it according to the ordinary and popular sense in words are used. If possible all provisions are given equal weight, and the whole is interpreted together so that no part is regarded as surplus. Only after you go through that do you get to legislative intent
“…subject to the jurisdiction thereof” is pretty awkward to modern ears, so I do think you get the intent. I just don’t think that SCOTUS is going to have the guts to pull the trigger on the proper interpretation
Why not just start with the fact that Wong Kim Ark was wrongly decided.
The Constitution confers on Congress the power to establish Uniform Rules for Naturalization not on the Supreme Court.
Not only did the Court step on the powers of Congress they ground their heal in the face of California that forbid the Chinese citizenship.
As the child of foreign nationals Wong was not Subject to the Jurisdiction of the United States but was subject to the jurisdiction of China. So the Court was also stepping on the rights of China.
To put it plainly Wong Kim Ark was an unlawful decision made on flimsy feel good reasoning.
Then we can bring up the very targeted purpose of the 14th Amendment.
The 14th was written for the sole purpose of granting citizenship to freed slaves and ensuring that they would be granted equal rights under the law.
The Court using the amendment to expand its reach beyond freed slaves in judicial activism pure and simple.
My problem with this issue goes back to elementary school, where I came to the following conclusion, from which I have not deviated:
I see this as an issue for Congress to decide, at least in the early stages. It is Congress that wrote the Amendment. It should be the job of Congress to engineer legislation, not the courts. Congress is perfectly capable of defining its intent without asking the courts ‘What did I mean.’
In short, I recognized Marbury vs Madison for what it really was - a power grab. Marshall manufactured a gap and squeezed himself into it.
It really only applied to the freed slaves at the time interpreting any other way is a real stretch (for good or bad).
I don’t think the Supreme Court really has the guts to do the right thing on this issue though
Congressional Debate on the 14th Amendment
With that in mind, then the next question, who is here that the citizenship status is subject to another country? Since the entire rest of the world doesn't do citizenship birth based on the soil the baby was born on (jus soli) but instead by if the baby was born to citizens (jus sanguinis), then it stands to reason to me that the citizenship of a baby born here is based on the citizenship of the parents. If the parents are from another country, even if here legally, then another country has jurisdiction over them and their baby (at least jurisdiction as far as citizenship goes).
Only if another country doesn't have jurisdiction over the citizenship of the person born here (i.e. the freed slaves had been severed from their native countries for many generations and thus no traceable line to their home countries to determine jurisdiction) is that person born a U.S. citizen.
IIRC, the legal phrase jus soli wasn't used as an argument for citizenship until relatively recently. Jus soli was about other types of jurisdiction. For example, if someone born and living in Massachusetts breaks a law while visiting in New Hampshire, he's tried in New Hampshire court instead of Massachusetts because the crime was committed on New Hampshire "soil".
Clearly.
That’s right — despite being born in the United States and after ratification of the 14th Amendment in 1870, Indians were not treated as citizens until this Act in 1924. Clearly, the thinking was that their membership of sovereign tribes made them not “subject to the jurisdiction” of the United States within the meaning of the Amendment. So what about today’s illegal aliens makes them significantly different from Indians pre-1924?
Yes, the Indian tribes were sovereign nations and not subject to the United States. So, how is it that the US decided to grant their citizens, US citizenship.
By 1924 the US had become a nation from Sea to Shining Sea and the US government decided that having numerous sovereign governments within its borders was no longer convenient.
US decided to invoke its power over a conquered people and make them citizens like several empires before them.
This act in no way has any baring on Wong Kim Ark or making Birthright Citizenship legal law of the land.
The 14th amendment didn’t even include the Indians and I would make the argument that it was because the Indians were not under the “jurisdiction of” due to them belonging to their own nations and basically at war with the rest of the US population. At least the ones in the West.
The intent of the amendment was pretty clear, backed up by the writer’s written explanation thereof.
Only corruption would/has kept it from being enforced.
Well stated.
Thanks, good information. That should settle the debate.
In other words, the 14th Amendment's definition of birth citizenship to people subject to the jurisdiction of the U.S. is saying, "Hey, us, the U.S., not only freed slaves in the 13th Amendment, but we're now saying in this 14th Amendment that they're citizens. How do we have that authority? Because all along we had the authority over their citizenship status. The African nations don't because only God knows which African nations their ancestors were from. Thus, we're in charge (jurisdiction) of their status and we're deciding to let them be citizens too."
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.