A Legal Primer on Birthright Citizenship in the United States

Navigating the Arguments for Abolishing Jus Soli by Executive Order

This isn’t a legal blog, but I have some academic chops in legal research and writing and thought I’d throw this out there for anyone who wants to better understand the legal issues with President Donald Trump’s blatant contempt for the Constitution of the United States.

The law on birthright citizenship is not only long settled, its much older than the Fourteenth Amendment wherein it is entrenched in plain language.

The History of Birthright Citizenship is Over 400 Years Old

Under British common law, anyone born within the King's dominions (territory under British sovereign authority) was considered a natural-born subject, regardless of the parents' nationality. This principle was famously established in Calvin's Case (1608). The doctrine is called jus soli.

There were exceptions for individuals not "under the allegiance" of the Crown, such as children of foreign diplomats (due to diplomatic immunity); and children of enemy soldiers occupying British territory.

The broad application of jus soli began to change in the 20th century with laws like the British Nationality Act 1948, which began to refine the concept of citizenship in the context of a shrinking British Empire and increasing immigration.

In 1981, the British Nationality Act 1981 further restricted jus soli, requiring at least one parent to be a British citizen or "settled" (legally resident without immigration restrictions) for a child born in the UK to gain citizenship automatically. This change reflected concerns over rising immigration and the modern notion of national citizenship as distinct from the older idea of subjecthood.

Jus Soli Was Codified Into the Constitution as a Guaranteed Right by the Fourteenth Amendment

The difference between British law and Constitutional law in the United States on jus soli (birthright citizenship) is simple. Ratification of the Fourteenth Amendment enshrined it as a Constitutionally protect right. No legislation, nor executive order can deny that right, anymore than they could free speech or freedom from illegal searches and seizures. It would require the ratification of a new amendment repealing it.

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.

Fourteenth Amendment

Subject to the Jurisdiction Thereof…

While fringe arguments have been made suggesting that “subject to the jurisdiction thereof” would exclude the children of undocumented immigrants, the history of that term does not support that reading even a little. The phrase simply reflects the context of the United States’ legal framework, but is functionally the same as the British term under jus soli doctrine, “under the allegiance.” It has long been understood that “under the allegiance” meant anyone born within territory under British sovereign authority was considered a natural-born subject, regardless of the parents' nationality.

The drafters of the Fourteenth Amendment understood and discussed this. Senators agreed that U.S.-born children of immigrants, including those of Chinese and Irish descent, would be granted citizenship. California legislators, where Chinese immigration was a contentious issue, voiced concerns about extending birthright citizenship to the children of Chinese immigrants during the debate over the Fourteenth Amendment. Those concerns were considered but ultimately rejected by the framers of the Fourteenth of Amendment.

The courts understood this. It had been defined for nearly a century. Chief Justice John Marshall’s interpretations of "jurisdiction" in cases like The Schooner Exchange v. McFaddon (1812), established that "jurisdiction" referred to being governed by U.S. law, not undivided allegiance.

It was an easy decision for the Court in the landmark case United States v. Wong Kim Ark (1898). The Court ruled in favor of Wong Kim Ark, affirming that the Fourteenth Amendment guarantees citizenship to all persons born in the U.S., regardless of the nationality or immigration status of their parents, as long as they are not in the limited categories excluded from jurisdiction (e.g., children of diplomats, occupying foreign armies and Native people born within sovereign tribal societies).

Two justices did dissent in the case, both from the South where the Fourteenth Amendment wasn’t particularly popular for obvious reasons. It was designed to foster racial equality after the Civil War and the abolition of slavery. There was a racial component to their dissent, namely their belief that the children of Chinese immigrants couldn’t assimilate. Good old fashioned nationalism, which appears to be alive and well today. It should come as no surprise that justices can and have simply ignored established law in order to facilitate policy changes they find important. But that’s not how law works. Or at least that’s not how it is supposed to.

How the Modern Court Might Rule on Birthright Citizenship

The conservative majority on the Supreme Court are historically originalists and textualists. It’s part of their judicial philosophy. The case should be cut and dry on those fronts. But as we have seen and shouldn’t be surprised to see again, when convenient, justices can simply abandon their judicial philosophy in favor of some “greater good” they find compelling. The only hope is that they might consider the greater good of not completely undermining confidence in the judicial and legal process of the United States. It’s already on pretty flimsy ground. I’ll give it a 65% chance in favor of invalidating any law or executive order that changes birthright citizenship.

A Pattern of Disregard for the Law

The big issue of our day is the more overt and casual disregard for the law that Donald Trump and the rest of MAGA nation demonstrate daily. I have my problems with the injustices of the legal system of the United States. I routinely openly challenge its legitimacy. Of course I haven’t taken an oath to uphold it. The point of concern is that this pattern of disregard continues to increase, and other rights come under threat.

My primary concern is the future for those who openly critique the United States, such as myself. If they won’t even uphold the plain text of the Fourteenth Amendment, what else will they do?

Why Collapse Curriculum Is Relevant to This Discussion

We can only wait and see. Nonetheless, this is why I write what I write. I want people to be ready for what might happen. It could be under any political party too. Activities, even now legal ones, might need to go underground, into the shadows. How do we communicate during such times? How do we practice security culture? How do we trust each other? These are topics that are fresh for discussion here in this space. Thank you for reading.