The Absurdities of Birthright Citizenship

The American Spectator ^ | December 15, 2025, 10:04 PM | Scott McKay

[E. Pluribus Unum]

There is now a modern twist to be considered in the birthright citizenship debate.

Last week, our friends at The Federalist ran a couple of pieces — one by Brianna Lyman and the other by John Daniel Davidson — on the opportunity currently before the U.S. Supreme Court with respect to birthright citizenship and the legal absurdities our current practice encompasses.

If you’re familiar at all with the history of this highly unusual practice, you know that it emanates from the Citizenship Clause of the 14th Amendment, which reads…

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.

This was written in an effort to guarantee that states wouldn’t write laws abusing the citizenship rights of former slaves in the Southern states after the Civil War.

Honestly, we would do ourselves a lot of good if we repealed the 14th Amendment and started over with a fresher and better-written statement of the laudable goals its framers sought to achieve. But that’s a whole other column.

Anyway, the “subject to the jurisdiction thereof” part in the Citizenship Clause was written in language that was plain at the time but has been badly obfuscated since.

Lyman traced the problem to an 1898 case you’ve probably heard of: Wong Kim Ark. That was a case which wasn’t all that badly decided in terms of its specific outcome, but the majority opinion was atrociously written and has set a terrible precedent…

Wong Kim Ark did more than just misinterpret the 14th Amendment. It effectively rewrote the citizenship clause of the 14th Amendment according to English feudal principles that the founders — and framers — rejected. In doing so, the court created a doctrine that the amendment’s authors...

[rdcbn1]

Wong Kim Ari does not support the current interpretation of birthright citizenship

[Bruce Campbells Chin]

Whatever the Supreme Court said in Wong Kim Ark, and whatever our understanding of the 14th Amendment has been in the 127 years since that decision, the situation created by mass immigration has changed the terms of the debate. That's the ol' "Living Constitution" argument, where the meaning of the Constitution should change over time because those changes mean better policy.

[hanamizu]

The Fourteenth Amendment is the gift that keeps on giving, isn’t it? Obviously the intend of its writers was to keep the states from restricting the citizenship of the freedmen which several of the states were trying to do. It should be noted that at the time of its passage, the Dred Scott decision was still ‘the law of the land’.

[ProgressingAmerica]

Correct.

And we all know who invented the living constitution argument as an ideological component.

Woodrow Wilson.

[ProgressingAmerica]

In one split second, birthright citizenship did in fact make sense. That moment came, that moment went. And that’s all it was designed for anyways.

The slaves, none of whom immigrated, none of whom consented to immigrating one way or the other.

[kiryandil]

Obviously the intend of its writers was to keep the states Democr💩ps from restricting the citizenship of the freedmen which several of the [Democr💩p] states were trying to do.

fixed your post.

[Verginius Rufus]

Sections 2, 3, and 4 were designed to deal with political issues in the aftermath of the Civil War and have no current application. Sec. 2 was meant to force Southern states to let black men vote while not requiring Northern states to do so--that became irrelevant when the 15th amendment was adopted (forcing Northern states to let black men vote). Sec. 3 was designed to keep the antebellum political leaders of the South from being elected to office. Sec. 4 was about the war debt from the Civil War, that incurred by the Union, and forbidding payment to any slaveowner for the value of any slaves which had been freed.

Section 1 is the source of current problems.

[Zhang Fei]

[There is now a modern twist to be considered in the birthright citizenship debate.

Last week, our friends at The Federalist ran a couple of pieces — one by Brianna Lyman and the other by John Daniel Davidson — on the opportunity currently before the U.S. Supreme Court with respect to birthright citizenship and the legal absurdities our current practice encompasses.

If you’re familiar at all with the history of this highly unusual practice]

---

Not only is jus soli not unusual, it is almost universal in the Americas. The motivating factor here was likely a desire to populate lands largely undeveloped by its original Neolithic Age inhabitants. Whatever the original intent, it remains law throughout the region, with restrictions that limit it to the offspring of legal aliens in some countries.

More and more, European countries are beginning to see jus soli as a solution to sub-replacement birth rates. Whether that’s wise depends on your vantage point, but it’s a legit method of addressing the problem of population collapse. That unrestricted jus soli could bring to the surface other issues is a good point, but one Euros are too busy trying to avoid a population decline to worry about right now. In particular, Bulgaria, Latvia, Lithuania, Croatia, Romania, Poland, Italy, Greece and Portugal are seeing population drops in real time, as deaths outpace births.

https://en.wikipedia.org/wiki/Jus_soli

In the US, white births were outpaced by white deaths starting in 2016.

https://apl.wisc.edu/data-briefs/natural-decrease-18

While a good chunk of this relates to the offspring of people like Ted Cruz and Bernie Moreno being classified as non-white for quota reasons, it’s clear that even the US is looking at population decline. And the real kicker is that Mexico’s total fertility rate has fallen below the US number. If this continues for much longer, Mexico is going to be building a wall on its side of the border. Shades of Operation Wetback being supported by the Mexican government concerned that the US was vacuuming up all of Mexico’s talent, leaving Mexican businesses high and dry, staffing-wise.

[Michael.SF.]

Bump for later

[Red6]

It has created a disaster.

Maybe it can be stopped.

But a lot of damage has already been done and I do not think it can be undone.

[Republican Wildcat]

Some extraordinarily creative writing on the part of the authors of this piece. There is zero evidence the Framers rejected the meanings of words and phrases to mean what they meant at the time they wrote them - otherwise they would not have used said words and phrases and would have specifically define those things to mean something else. The 14th amendment had nothing to do with it. Any person born to parents legally within the realm have been natural born citizens - that is what the phrase meant at the time it was written, and nothing indicates the Framers rejected the meaning of said phrase - otherwise they would not have used it. The Wong case was one of multiple cases where this was adjudicated.

What has not been specifically adjudicated is whether or not children born to parents who entered illegally within our territory - who entered without permission or authorization - are natural born citizens. There is no case where that has been specifically addressed.

[Pete Dovgan]

The 14th Amendment gave slaves here in the United States citizenship.

Nobody asks the hard questions, and especially not the SCOTUS in Wong.
1. What nation claimed the US slaves as citizens at the end of the Civil War, before the 14th Amendment?
2. What national provided those slaves protection and a way ‘home’?

The answers are simple, nobody claimed them or gave them rights, and no one offered to domicile them.

When discussed, before the vote, it was made clear that the intent did not reach those so affected in other groups. Natives, for instance, weren’t considered under the Jurisdiction, because loyalty was to tribe and tribal government.

Children of diplomats, those of enemy soldiers, those of invaders, they have another national allegiance and do not fall under the jurisdiction of the United States. This was understood in Vattel’s work ‘Laws of Nations’ before 1790. No one who reads the history of the founding fathers, the Constitution and its reference to laws of nations, or that the writers of the Constitution were clearly familiar with Vattel’s work (checked out from NYC library- which functioned as Congressional library prior to Constitution adoption) can deny. The war of 1812 was a dispute centered around ‘ownership and impressment of US sailors by British interpretation of ‘Laws’ which Americans did not accept.

Children born on US soil by invaders, and that includes those violating US laws to be here, have no claim on US Citizenship. Those children born under US laws to foreign parents (not invaders or here illegally),should have the opportunity to claim US citizenship when they turn of adult age and accept US laws and customs, and legally revoke all other citizenships.

Of course I know my opinion means very little to those encamped in an ideology already. I have based it upon history, the US relationship with France from 1776 until 1790, and discussions by Congress before adoption of the 14 th Amendment. English interpretation of international laws, and who is a subject, were clearly rejected by the early US, so forget quoting Blackstone here. Further, the Term Natural Born Citizen, discussed by Washington and John Jay, both of whom checked out Vattel’s book, was not a term familiar to Blackstone prior to 1790. Only through they eyes of Vattel, and those who fought and risked everything in the revolutionary war, can that prerequisite for POTUS be understood.

[weezel]

I dont know, it just seems to me that born here should be a citizen. HOWEVER, if the parents are illegal, they should be deported and should they want to take their children with them, they can.

[Zman]

IDK, this phrase makes it pretty clear to me:“subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”.

If a person illegally crosses the border, that individual should not instantaneously gain residency status and be subject to the jurisdiction of the state where they have arrived.

That individual could not be considered a legal citizen of that state, or the U.S. for that matter, the moment they stand on its soil because there has not been a legal retraction of citizenship of the country from which he or she departed. Thus, they are still subject to the legal jurisdiction where they were already established citizens.

Furthermore, consider that it takes 12 consecutive months to reside and maintain domiciles in Texas or New Mexico to become legal residents in those states. Whether one walks or flies across the border, it does not automatically confer legal residency status upon entry into the U.S., since there is no established, year-long record of permanent domicile in those states.

[Flavious_Maximus]

All anchor babies are themselves illegal aliens and should be deported along with their illegal alien parents. Period, full stop.

Looking straight at you Kamala Harris. /spit

[Political Junkie Too]

I've posted before on the text of Thomas Paine's The Rights Of Man from 1791. I previously focused on the language of "foreigner" and "half a foreigner" to point out the understanding of citizen parents in 1791. Now I want to focus on political connection as an aspect of "jurisdiction.

From The Rights Of Man,"CHAPTER IV. OF CONSTITUTIONS":

The president of the United States of America is elected only for four years. He is not only responsible in the general sense of the word, but a particular mode is laid down in the constitution for trying him. He cannot be elected under thirty-five years of age; and he must be a native of the country.

In a comparison of these cases with the Government of England, the difference when applied to the latter amounts to an absurdity. In England the person who exercises prerogative is often a foreigner; always half a foreigner, and always married to a foreigner. He is never in full natural or political connection with the country...

Here we see a 1791 definition of "jurisdiction":

1. Full natural connection - connection to the land

2. Full political connection - allegiance to no one else

That's why I've been advocating that the 14th Amendment use of "subject to the jurisdiction thereof" is meant to mean "sole" jurisdiction, or "full natural or political connection with the country" as Paine put it.

-PJ

[Bruce Campbells Chin]

First, Thomas Paine's writings are not part of the Constitution, and were published after it was written anyway. He was involved in neither the writing nor the ratification of the Constitution. But that is irrelevant anyway because....

Second, the entire point of the 14th Amendment was to change how people became citizens. Citing to an opinion from the 1700s regarding what they thought citizenship should be based upon at that time misses the entire point of the Amendment, which was drafted and ratified 80 years later..

It's the logical equivalent of arguing that the Three-Compromise made in the 1780's proves that the 14th and 15th Amendments really didn't mean to make slaves equal citizens because the Compromise proves the "intent" of the Framers.

[Bruce Campbells Chin]

“Three-Fifths Compromise.”

[Political Junkie Too]

The point is to rebut any notion that there was never any other definition of citizenship at any other time in our history.

Regarding the comment that Paine wasn't a part of the Constitutional Convention, neither was Thomas Jefferson, and yet his private writings to the Danbury Baptist Ministers in 1804 about a "wall of separation between church and state" has become political dogma.

Goose, meet gander. Both were influential writers of the time, and both wrote of their understanding of the Constitution, the difference being that Paine's writing was only three years removed from ratification, and Jefferson's was seven years removed.

-PJ