Why The Supreme Court Must Strike Down Birthright Citizenship

Soil alone does not a citizen make.

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Earlier this month, the nation’s highest tribunal held oral arguments on what surely will go down as the most consequential decision, for good or ill (depending on the outcome reached), of this generation. The question presented before the Court: whether the Fourteenth Amendment guarantees birthright citizenship, or whether the Amendment’s meaning, a byproduct of the Civil War era, should, in its more reasonable construction, be duly circumscribed to encompass the progeny of newly emancipated slaves only. Really, the underlying issue is more political than legal. No other major Western country, and particularly none even comparable in size to the United States by population, grants all the rights of citizenship purely because a person was born on that country’s soil. The policy, on its face, patently does not make sense, counters centuries of history, and proves logistically unworkable. In a word, birthright citizenship is farcical.

Legally, the text of the Naturalization clause reads as follows: “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 key phrase is “subject to the jurisdiction thereof.” Because the Amendment is conjunctive (“and”), not disjunctive (“or”), it imposes a two-part requirement to establish citizenship: birth on US soil, and being a subject of the laws (i.e., jurisdiction) of the nation.

In a certain respect, it is the phrase “jurisdiction” which is ultimately what is being debated before the Supreme Court. There are two senses of jurisdiction. The first, more limited sense, is jurisdiction that imputes to anyone who is located on US soil, be they a visitor or permanent resident. Every single person on American soil is bound by US law. And this is intuitive: foreigners have every bit as much an obligation to follow our laws as citizens do. Being a foreign visitor does not accord one blanket immunity to, say, rob a bank or drive under the influence. But that is less a matter of law, than a precept of universal common-sense principles. No country would ever be able to accept foreigners – the entire tourist industry would not be possible – unless those foreigners were bound to their laws.

The jurisdiction envisioned by the framers of the Fourteenth Amendment, however, is not this more limited definition. What the framers of that Amendment had in mind when drafting it clearly was the more comprehensive understanding of jurisdiction: jurisdiction as commonly applied to legal rulemaking, as in the recognizable context of personal jurisdiction and subject matter jurisdiction. This more comprehensive, developed understanding of jurisdiction implicates deeper questions of citizenship. In the domain of personal jurisdiction, for instance, whether a case may be brought in a particular venue sometimes involves complex questions of law, prompting courts to undertake, in more complicated scenarios, a deeper dive into such factors as a litigant’s ties to a disputed forum, for example, and whether bringing a lawsuit there would offend “traditional notions of fair play and substantial justice.”

The fact that the legal system has developed such sophisticated and complex tests for determining questions of personal jurisdiction, which also has its roots in the Fourteenth Amendment, offers very strong support for the theory that the concept of jurisdiction, as conceived by the Amendment’s framers, is the more substantive of the two definitions. In short, the Amendment’s framers had in mind jurisdiction implicating citizens, and not simply the narrower version of that definition that obligates all people, regardless of citizenship, to follow the law when visiting the United States.

So, having established that the Fourteenth Amendment contemplates this more comprehensive version of jurisdiction (which becomes obvious after just a little thought), that would appear to be the final word on the matter. Jurisdiction and citizenship work hand-in-glove: a non-citizen cannot therefore magically become a citizen if his parents were not already citizens, through birthright or naturalization. Birthright citizenship is not disallowed by the Fourteenth Amendment, per se: but it can only be activated if one or both parents are citizens themselves. In other words, being born on U.S. soil is a sufficient, though not necessary, condition for birthright citizenship. The necessary requirement on which the fundamental issue turns is the citizenship of parentage (the Amendment is agnostic about how the parents themselves become citizens), not the physical space, the soil, on which the child is born.

The essentiality of the citizenship of parentage question becomes even clearer in a related context. If a child is born on foreign soil but to American parents (such as parents on military duty or studying abroad), that child necessarily becomes a citizen by birthright. It does not matter that the child was not born on U.S. soil: what matters is the parents’ citizenship status. If the parents are American citizens, then so too is the child automatically. Indeed, even more support is given for this based on the laws of other Western nations. Italy and France, for example, do not grant citizenship based on soil alone. This itself presents a conundrum, made explicit in the following thought experiment: imagine if soil was a necessary requirement for citizenship in the United States, but no other nation. That would mean a child born to American parents abroad would not be able to become a citizen of the United States, or any other country, because America’s citizenship rules (based on this interpretation) elevate the location of the child’s birth as the all-determining factor, whereas most every other Western nation on earth, more sensibly, has a policy of granting citizenship based on parentage only (the famous jus soli versus jus sanguinis distinction in the common law). This dilemma would create the problem of the stateless citizen, which is brought on by the fact that at least some liberal legal analysts and judges in the United States believe that soil should stand as the be and end all to citizenship, over against the citizenship of the parents, despite the latter being the prime factor that decides questions of citizenship virtually everywhere else the world over.

Bringing this back to the Fourteenth Amendment: we have established that the Amendment implicates questions of citizenship derivative of the more substantive understanding of jurisdiction. Moreover, citizenship establishes that American birthright or naturalization must be a prerequisite for the parents so that the child might also become a citizen. Soil alone does not a citizen make. The legal status of the parentage, not the physical location on which the child is born, is the decisive factor.

Even the case law supports this view. The seminal decision, Wong Kim Ark (1898), the asserted grounds on which the bastardized construction of birthright citizenship is supposed to be upheld, does not support the modern liberal construction that would grant citizenship to anyone born on U.S. soil, regardless of the legal status of their parents – up to and including illegal aliens who committed multiple felonies. There, the Court ruled that children born of a lawful domiciliary – a class that of course includes citizens – may be granted certain privileges under the Constitution. That is not to justify Wong Kim Ark as a good decision, as it has sowed more confusion than its worth over a century and a quarter of U.S. history. In a perfect world, that decision would be overturned completely. However, working from the principle to not let the perfect get in the way of the good: the correct interpretation of birthright citizenship stands even with Wong Kim Ark not getting overruled. And, in fact, Wong Kim Ark supports the administration’s position on birthright citizenship because it only granted citizenship privileges to lawfully domiciled residents: the case was notably silent on the issue of children born to parents without any lawful documentation whatever – a category of people that includes, you guessed it, illegal aliens!

That is not to say that there is not some ambiguity in Wong Kim Ark – at least enough ambiguity to allow exploitative interest groups, some one hundred twenty-five years after the decision was handed down, to opportunistically broaden the scope of the Wong Kim Ark judgment so to also incorrectly encompass illegal aliens. But if it were the intent of Wong Kim Ark to grant citizenship to all persons born on U.S. soil, that would have been made explicit in the majority decision itself. The fact that the majority decision did not do this, supplemented with the repeated references to “domicile,” “domiciliary,” and “allegiance,” as several Justices noted in the oral arguments held this month, provide strong grounds in support of the theory that Wong Kim Ark’s deciders envisioned a limited ruling. They did not, in other words, intend that their decision would be misconstrued to open the floodgates that would allow the children of any foreigner to be granted citizenship. If that were true, it would not make sense why a foreign ambassador, serving in the United States, would be ineligible to have their child become a citizen, as an expressed carveout of the Fourteenth Amendment, while his peer who crossed the border illegally, breaking every law along the way, can have that benefit. In that upside down world, American law would actually privilege the illegal alien repeat felon over the gentleman of public service dutifully working towards diplomatic aims on U.S. soil.

Practically, the policy of unconstrained birthright citizenship is a nonstarter. The reason is that it effectively shatters any distinction between citizen and non-citizen, irremediably cheapening the latter while granting all the benefits of American citizenship to any person on the face of the earth. This can be observed by the internal logistical paradoxes at the heart of the policy: a newborn child born of illegals would necessarily require care and attention. This sets up the concept of anchor babies – and anchor families. Unless the United States government would want to create a whole class of potential citizens that are wards of the state, a logistical impracticality, it would be required to also grant citizenship or at least legal status to the parents of the children born on U.S. soil. The U.S. government is not in the child-rearing business: it lacks the means and resources to raise a whole class of potentially millions of parentless children. It is doubtful that such a policy would pass constitutional muster in the first place, but even if it did, it would prove untenable for obvious reasons. Thus, the idea to push for birthright citizenship is to not only grant citizenship to the children of illegals, but to the illegals themselves. Any alternative theory logically does not make sense, or proves utterly impractical under the light of scrutiny. Those actors who push for the policy, while suggesting that it would not make the parents citizens by default, are not being honest, as the coherence of their position collapses under the weight of the various problems that would invariably arise from maintaining such an unworkable program.

That is not to say that Wong Kim Ark is good law. By all honest accounts, particularly for the confusion it wrought, it is woefully bad and outdated law. It does not serve the intent and design of the Fourteenth Amendment, and in modern times, with tens of millions of illegal residents here in the United States today, it is completely out of step with the political crisis at hand. However, given the practical constraints we must deal with, it is unlikely that this current Supreme Court, even with its conservative majority, would have conviction enough to overturn Wong Kim Ark in one fell swoop. Conservatism in the law can be a double-edged sword: a decision that has been on the books for over a century can be upheld under the pretext of stare decisis (the blithe assumption that longstanding precedent, even patently unconstitutional legal decisions, is traditional by default), not because the law can be justified and even less because it is constitutional. However, the Supreme Court must also confront issues that go outside of the merits of the decision as well, weighing so-called “reliance” interests, individual reputations, external politics, and institutional stability, which though not black-letter-law, drive as much of the Court’s decisions as the law itself. While the Constitution is a near-perfect document, with the sanctity of a religious artefact, its interpreters are fallible human beings – who become seemingly more fallible with each passing year.

Alas, it is not always the law that has the last word on things, but the extralegal emotions, caprices, and whims of nine judges that for reasons not entirely noble impurify the law with selfish motives, which may drive a decision in a way that is clearly at odds with the text, meaning, and purpose of a statute or constitutional provision – and which could unleash precedent that is destructive for the rest of the country, which must then live with it for sometimes over a century. Any decision that gets handed down by the Court, short of the proper one to overturn birthright citizenship altogether, would be living testimony of man’s fallen angels winning over the rule of law. This would be a disgrace for a country that has gradually abandoned the Constitution over the years in part because jurists have prioritized the short-term view, satisfying ego and vain personal interests first, over the long-term health of society. Lest we seek to go down that route, pray that cooler heads prevail.

Paul Ingrassia is serves in the Second Trump administration. Follow Paul on X @PaulIngrassia, Substack, Truth Social, and Instagram.