Supreme Court: Children of Illegal Aliens or Tourists are not U.S. Citizens; Revisiting old but still-controlling Supreme Court decisions on birthright citizenship

American Thinker ^ | 05/22/2025 | Gabriel Canaan

[SeekAndFind]

On the very day Donald Trump became president again, he signed an executive order prospectively eliminating birthright citizenship for children born to aliens unlawfully present in the United States.

Immediately, lawsuits were filed in a half-dozen jurisdictions across the country challenging this order.

The groups bringing these suits claim the order disrupts long-standing legal norms governing citizenship. Yet, in fact, Trump’s contention — that birthright citizenship is not possessed by children of illegal aliens under the “correct interpretation of the law” — is exactly right.

Birthright citizenship is conventionally understood to apply to any child born in the United States, regardless of the immigration status of that child’s parents. This view is based on the common law principle of jus soli (“right of soil”), which is said to be incorporated in the Citizenship Clause of the Fourteenth Amendment. This understanding of the Citizenship Clause, however, despite its prevalence in academia and political commentary, is based on a mistaken and incomplete reading of controlling Supreme Court precedent.

In fact, birthright citizenship, as provided for in the Citizenship Clause, as that clause has been authoritatively construed by the Supreme Court, is possessed only by children born in the United States to at least one parent who is lawfully residing in the United States.

Ratified in the aftermath of the Civil War with the aim of remedying the injustices of the Dred Scott decision, the Fourteenth Amendment granted citizenship to “all persons born ... in the United States, and subject to the jurisdiction thereof.” This latter phrase has been wrongly equated with “subject to the laws thereof,” and thus to entail that all persons born in the United States are U.S. citizens, with only a few narrow exceptions, such as children born to diplomats.

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TOPICS: Constitution/Conservatism; Culture/Society; News/Current Events
KEYWORDS: 14thamendment; aliens; anchorbabies; birthright; citizenship; illegals; invaders; scotus; slavery

[SeekAndFind]

Yet the Supreme Court has construed the phrase “subject to the jurisdiction” more narrowly, most notably in seminal cases that have been taught — well or ill — in law schools ever since.

[SeekAndFind]

Here's a case to consider:

In the 1884 case Elk v. Wilkins, decided when American Indians were increasingly integrating into mainstream American society, presented the constitutional issue of whether Indians who had been born within the allegiance of a tribe were “subject to the jurisdiction” of the United States at birth, and thus born American citizens under the Fourteenth Amendment.

The Court ruled that they were not “subject to the jurisdiction” of the United States, on the ground that “jurisdiction” in the Citizenship Clause meant complete jurisdiction, which implied “direct and immediate allegiance” to the United States. The parents of children born in the allegiance of a tribe had only indirect and intermediate allegiance to the United States, through their tribe.

(However, Today, by a subsequent act of Congress, Native American Indians born on reservations are U.S. citizens at birth.)

[Tell It Right]

Kudos to the article writer, Gabriel Canaan, for pointing out that Amendment 14 was, in part, a response to the SCOTUS decision in Dred Scott (which said, among other things, that blacks can't be citizens).

So the "subject to the jurisdiction thereof" clause was basically saying that kids of visitors don't get the citizenship that Amendment 14 was about, which is to include blacks (for being born here while not being subject to other nations). So basically, the political left today that wants to always hold the past slavery over Americans' heads, is the same left that undermines something that was meant in Amendment 14 to make sure it applied specifically to freed slaves.

[research99]

In accordance with this discussion, the entire term of Kamala Harris as VP (and all of the legislation and judges approved by her tiebreaking vote in the Senate) are legally invalid.

Neither of her parents were citizens, nor permanent residents, nor "domiciled" in the US, at the time of her October 1964 birth. (In fact, her mother was present on a student visa that had expired).

[Carry_Okie]

There is a difference between being within a jurisdiction and being subject to it.

One of course should question the very idea that Americans could be "subjects" to our govern-mint, but that's another problem with the clause.

[SeekAndFind]

RE: There is a difference between being within a jurisdiction and being subject to it.

That’s a very good way of putting it.

[SomeCallMeTim]

I can’t wait for this WIN!!

[wardaddy]

Good step possibly

[SeekAndFind]

RE: I can’t wait for this WIN!!

I don’t want to rain on your parade, but I hasten to remind you that John Roberts and Amy Coney Barrett are still on the bench :(

[research99]

"Subject to the jurisdiction" includes the capability as a US citizen to be involuntarily drafted into military service.

This "right" does not apply to visitors or aliens otherwise illegally present, therefore they are not "fully" subject to US jurisdiction per Elk v. Wilkins of 1884.

[Regulator]

We’re subjects of our own sovereignty.

The People are sovereign under the Constitution, and as you have so capably explained here to other misinformed bloviators, “The People” is a legal term of art for the citizenry.

[Carry_Okie]

“The People” is a legal term of art for the citizenry.

I prefer to think of it as the body of adult humans who abide by the social contract. That doesn't mean we have to like every bit of it, as there would otherwise be no need for either an amendment process or Article V, but it makes an important distinction re Islam in particular, as their text in no uncertain terms states no intention of abiding by any other Supreme Law; indeed its stated intent is to overthrow it completely with no respect for any other religion.

[joshua c]

which said, among other things, that blacks can’t be citizens)

not blacks

slaves and freed slaves

there were black US citizens

[Tell It Right]

there were black US citizens

Yes, but the Dredd decision undermined that.

https://constitutioncenter.org/the-constitution/supreme-court-case-library/dred-scott-v-sandford

[I]f persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them . . . . And these rights are of a character and would lead to consequences which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States

Thus, the wording of the 14th Amendment was to make sure, in part, that no future SCOTUS would make race a deciding factor on citizenship. You have to be born here and not subject to another nation (thus today's Dims are wrong to include foreign born kids as citizens) and no can deny it because of race like Dredd decision did (thus Dims back then were wrong).

[JimRed]

So, will that decision create an “ex post facto” law removing the presumption of citizenship from those already born here of illegal parents, or will it apply only to those born after the decision?

Any lawyer FReepers care to respond?

[JimRed]

So, will that decision create an “ex post facto” law removing the presumption of citizenship from those already born here of illegal parents, or will it apply only to those born after the decision?

Any lawyer FReepers care to respond?

[frog in a pot]

...thus today's Dims are wrong to include foreign born kids as citizens)...

Wrong at a minimum, it was nothing less than a clumsy attempt to undermine the Constitution: -"if you throw an alien in jail for drunk driving he is subject to the jurisdiction, therefore...", etc. It was then followed by opening the borders and flooding the states with aliens.

It was clumsy, but they got away with it for a long time and may yet for the foreseeable future, we will soon know.

Despite the federal statute prohibiting non-citizen voting, they have been voting for decades and were recently a heartbeat away from the highest office in the country.

It would have been even closer than a heartbeat if Jill Biden had been enticed to throw in the towel.

[Bob Wills is still the king]

“There is a difference between being within a jurisdiction and being subject to it.

One of course should question the very idea that Americans could be “subjects” to our govern-mint, but that’s another problem with the clause.”
____________________________________________________________

If you can be arrested and prosecuted, you are subject to the jurisdiction of the United States. The millions of illegal aliens we want to deport are all subject to the jurisdiction of the United States, or we could not arrest and deport them.

When the 14th Amendment was ratified, “tourism” was only practiced by the well to do.

Diplomatic personnel have diplomatic immunity, so are NOT subject to the jurisdiction of the USA.

[lurk]

Didn’t SCOTUS just rule against the white house on birthright?

[falcon99]

It would seem a very easy interpretation of “under the jurisdiction of” would be to answer the question - what government can the individual obtain his/her passport from. That is who that individual is under the legal jurisdiction of.