{"id":19678,"date":"2026-04-05T14:00:00","date_gmt":"2026-04-05T20:00:00","guid":{"rendered":"https:\/\/gemstatepatriot.com\/blog\/?p=19678"},"modified":"2026-04-05T21:18:29","modified_gmt":"2026-04-06T03:18:29","slug":"birth-right-citizenship-part-i","status":"publish","type":"post","link":"https:\/\/gemstatepatriot.com\/blog\/birth-right-citizenship-part-i\/","title":{"rendered":"Birth Right Citizenship Part I"},"content":{"rendered":"\n

This issue could change the face of our nation over the next four decades.<\/em><\/strong><\/p>\n\n\n\n

The Original Purpose: Yes, It Was About Slavery: <\/strong>The citizenship clause was added to the Constitution in 1868 and was intended to overrule the Supreme Court’s 1857 decision in Dred Scott v. Sandford<\/em>, which held that a Black person whose ancestors were brought to this country and sold as enslaved persons was not a U.S. citizen. SCOTUSblog<\/a> <\/strong>President Trump insists this was about slaves from the Civil War and not for billionaires bringing people in it was for the children of slaves.<\/p>\n\n\n\n

Solicitor General, D. John Sauer, is made this exact argument at the Supreme Court. Sauer cited the Slaughter-House Cases<\/em> (1873), where the Court \u201crecognized that the Amendment’s ‘one pervading purpose’ was ‘the freedom of the slave race’ and ‘the security and firm establishment of that freedom.’\u201c He also pointed to Elk v. Wilkins<\/em>, where the Court indicated the clause’s primary purpose \u201cwas to settle ‘the citizenship of free slaves.’\u201c SCOTUSblog<\/a><\/p>\n\n\n\n

But the Text Went Broader Than Slaves: <\/strong>Here’s where this debate gets complicated. The framers didn’t write \u201call formerly enslaved persons and their children are citizens.\u201d They wrote this in much broader language: \u201cAll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.\u201d<\/p>\n\n\n\n

The challengers are arguing that the citizenship clause \u201cdrew on and reaffirmed a centuries-old, common-law tradition of citizenship by virtue of birth, rather than parentage.\u201d They pointed out that in early English law, \u201cchildren born to ordinary foreign nationals were subjects\u201d of the king, whether or not their parents lived permanently in England. In 1844, a New York court applied that same rule, holding that a child born in New York to Irish parents living temporarily in the United States was a U.S. citizen. SCOTUSblog<\/a><\/p>\n\n\n\n

The Key Precedent: Wong Kim Ark<\/em> (1898): <\/strong>The most important case on this was decided 128 years ago. In the case of Wong Kim Ark, who was born in San Francisco to parents of Chinese descent, a majority of the Supreme Court agreed he was a U.S. citizen. Justice Horace Gray wrote that although the \u201cmain purpose\u201d of the 14th Amendment had been to establish the citizenship of Black people, the amendment applies more broadly and is not restricted \u201cby color or race.\u201d Instead, it \u201caffirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.\u201d SCOTUSblog<\/a><\/strong><\/p>\n\n\n\n

Justice Gray noted there have historically been only a few exceptions children of hostile enemies occupying the country, children of foreign diplomats, and (until 1924) some Native Americans. SCOTUSblog<\/a><\/p>\n\n\n\n

Congress has Reinforced This Understanding Twice: <\/strong>On January 20, 2025, President Trump signed Executive Order 14160, ordering all departments of the executive branch to refuse to recognize children born to illegal immigrants or visa holders as citizens. Wikipedia<\/a><\/strong><\/p>\n\n\n\n

However, the administration has a statutory problem. The challengers contend that the executive order is invalid for the separate reason that it violates a federal immigration law, 8 U.S.C. \u00a7 1401, providing that anyone \u201cborn in the United States, and subject to the jurisdiction thereof\u201d is a U.S. citizen. They insist that when the statute was first passed in 1940 and then reenacted in 1952, Congress should have understood that the phrase incorporated the prevailing practice that virtually everyone born in the United States is automatically a citizen. SCOTUSblog<\/a> Shame on congress for not catching this problem.<\/p>\n\n\n\n

They also point out that in the 1940s and ’50s, Congress upheld the \u201csubject to the jurisdiction thereof\u201d language in immigration law, showing that lawmakers found the text suitable enough to codify it into law. It is understood that a president’s executive order generally cannot override a law passed by Congress.<\/p>\n\n\n\n

The \u201cSubject to the Jurisdiction Thereof\u201d Fight: <\/strong>This entire case hinges on six words. The Trump administration is arguing that to be \u201csubject to the jurisdiction\u201d of the United States, you must be \u201ccompletely subject\u201d to its \u201cpolitical jurisdiction,\u201d meaning you must owe it \u201cdirect and immediate allegiance\u201d and<\/em> receive \u201cprotection\u201d from it. The children of noncitizens \u201cwho are domiciled elsewhere, and are only temporarily present in the United States, owe primary allegiance to their parents’ home countries.\u201d And the children of undocumented immigrants \u201cdo not owe primary allegiance to the United States by virtue of domicile, for illegal aliens lack the legal capacity to establish domicile here<\/strong>.\u201d SCOTUSblog<\/a><\/strong><\/p>\n\n\n\n

The challenge is if the drafters of the 14th Amendment had intended to go against the existing practice of granting citizenship to all babies born in the United States in favor of giving citizenship only to the children of parents who make their home permanently here, \u201cthey would have said so.\u201d They add that \u201cundocumented immigrants are domiciled in this country: They reside here, with ‘an intention to remain.’\u201c SCOTUSblog<\/a><\/p>\n\n\n\n

Obama’s Position in Context: <\/strong>Obama affirmed birthright citizenship as a fundamental principle of American law but wasn’t making a novel or controversial interpretation. He was only following the same understanding that every president\u2014Republican and Democrat\u2014had operated under for over a century, grounded in Wong Kim Ark<\/em>, reinforced by Congress twice, and never seriously challenged by any administration until now. Under his administration 3 million illegals were deported but he never questioned the birthright citizenship framework itself.<\/p>\n\n\n\n

Where do Things Stand Today: <\/strong>Trump has said that people and companies, many from China, have profited off birth tourism by bringing people into the U.S. with the intent of giving birth so their children could be granted citizenship. \u201cPeople are making a living, a big living, getting hundreds of thousands and even millions of dollars from bringing people into the U.S.\u201d<\/p>\n\n\n\n

The liberal machine is pushing back, calling the rate of \u201cbirth tourism\u201d marginal, and note that \u201cfederal regulations already prohibit issuance of tourist visas ‘for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.’\u201c SCOTUSblog<\/a><\/p>\n\n\n\n

There were four district court judges who blocked the order two appointed by conservative presidents and two appointed by liberal presidents they considered the issue and found the order to be illegal. This is why the administration brought the case to the Supreme Court in 2025 through the emergency docket process.<\/p>\n\n\n\n

The Bottom Line: <\/strong>This battle revolves around the historical evidence showing the 14th Amendment was motivated by and prompted by<\/em> the need to grant citizenship to former slaves and their children. President Trump is correct about the original impetus. Unfortunately, the framers chose to write the text more broadly than just covering former slaves, the Supreme Court confirmed that broader reading in 1898 (Wong Kim Ark<\/em>), and Congress codifying it into statute in 1940 and 1952, and every administration followed it for over 150 years.A ruling is expected by late June or early July.<\/p>\n\n\n\n

There are 5 potential remedies to this problem: 1. <\/strong>Acceptance of Trumps executive order which seems doubtful. 2.<\/strong> Congressional legislation redefining \u201cSubject to the Jurisdiction which would face more court challenges, 3. <\/strong>Supreme Court reversal of Wong Kim Ark which is also doubtful after listening to the hearing. 4<\/strong>. Depending on the Ruling there are a few options:Rather than changing the citizenship clause, Congress could focus on removing the practical incentives that drive birth tourism and exploitation:<\/p>\n\n\n\n