Today SCOTUS heard arguments on birthright citizenship
Here is the Question Presented on which the court agreed to take the case:
“The Citizenship Clause of the Fourteenth Amendment provides that those “born * * * in the United States, and subject to the jurisdiction thereof,” are U.S. citizens. U.S. Const. Amend. XIV, § 1. The Clause was adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens. On January 20, 2025, President Trump issued Executive Order No. 14,160, Protecting the Meaning and Value of American Citizenship, which restores the original meaning of the Citizenship Clause and provides, on a prospective basis only, that children of temporary visitors and illegal aliens are not U.S. citizens by birth. The Citizenship Order directs federal agencies not to issue or accept citizenship documents for such children born more than 30 days after the Order’s effective date.
“The question presented is whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.”
President Trump is attending, although the left has been outraged about that and claims it threatens separation of powers (and apparently no president has ever done so before). However, there has been a chair there for presidents if one happens to want to attend, so it seems perfectly okay.
The Legal Insurrection article I linked in the first sentence says that from the drift of the proceedings there’s no way to tell how the justices will ultimately rule, but it seems the vote will probably be very close with Barrett casting the deciding vote. Jonathan Turley seems to think it most likely that the government will lose. I find that I agree, mostly because I think they’re reluctant to make that large a change when the intent of the statute’s framers is unclear because they never envisioned the present-day situation (for example, that of pregnant tourists coming here for the sole purpose of giving birth here and of conferring citizenship on their baby and then immediately leaving with the baby).
I think it’s obvious that such a situation would not have been the intent of the statute’s framers, although they never explicitly addressed it. But I think it might take a constitutional amendment to change the law. I doubt such an amendment would pass – too many blue states? – and in any event it would take a long time.
[NOTE: I’ve written on the birthright citizenship question many times. I refer you in particular to this post, which adds links to several other posts of mine on the subject, plus a quote with some predictions.]
although they never explicitly addressed it
One way those kinds of questions can be answered is by looking at the practice that went on in those times. Did they actually confer citizenship on just anybody who was born in the United States?
Suppose you could find out, in say the first ten years after the 14th Amendment, that there were lots of people born in the US to foreign parents who were not given US citizenship, and then you’d know that the people of that time did not intend the 14th Amendment to have that meaning. Likewise you can easily tell by their practice that they did intend it to apply to children of American slaves.
Or suppose you found out in the years prior to the adoption of the 14th Amendment that people born in the US to foreign parents were universally and routinely given citizenship. Then the 14th Amendment wouldn’t have changed anything, and whatever rule birthright citizenship is based on would predate the 14th Amendment. (A predating principle might be found in English common law: see Blackstone, Book I, chapter X, “Of the people, whether aliens, denizens, or natives”.)
From what I understand, American-born children of Chinese (regardless of their citizenship or immigration status) were routinely denied citizenship until the Wong Kim Ark case in 1898. The Chinese Exclusion Act of 1882 states “hereafter no State court or court of the United States shall admit Chinese to citizenship; and all laws in conflict with this act are hereby repealed.” I don’t have any data on how many American-born Chinese would have been affected.
But in that time between 1868 and 1898 it seems the American people as shown by their practices didn’t think that the 14th Amendment applied universally to those born here. What one court has interpreted into existence, a later court can uninterpret. It’s not like we’ve never seen that before.
IMO, Turley’s an honest broker. Over the years, the leftoid commenters on his site have grown increasingly antic.
In any sensible political order, the civil status of one born in a territory is derived from that of their mother by default and from that of their father if they be of legitimate birth and their father has a status preferable to that of the mother. A citizen begets a citizen, a temporary resident a temporary resident, a sojourner a sojourner, and an illegal alien an illegal alien. The child of someone with settler status should beget a denizen, i.e. a settler with a durable rather than contingent right of domicile. The child of a denizen might be granted citizenship.
==
I admire Bobby Jindal, don’t admire Kamala Harris. Both should have had temporary resident status at birth. Ted Cruz, as the child of an American citizen born abroad, should have been granted denizen status at birth.
(Questionable) Policy reversing-interpretations on the part of Democrat regimes are permanent, not to be overturned, because . . . progress!
When the Marxists take over, not if with vote fraud still wide open, we will be living in the Camp of the Saints
If the court’s decision upholds birthright citizenship for illegals and birth tourists, it makes legitimate citizenship meaningless. A clear majority of Americans will not accept that and will feel betrayed by the legal system and that feeling will grow and deepen. It’s an 80/20 (at least!) issue that is not going to ‘blow over’ and coming on top of the inability of the Congress to pass the Save act, I think the ultimate result would be psychologically disastrous for the country. And dangerous. Something similar to the Dred Scott decision and the Fugitive Slave Act, which, while seemingly a win for the South, hardened hearts in the North and made war seem the only alternative to Southern intransigence. Ultimately, Roberts being afraid to upset the status quo would be extremely damaging to the court’s authority and could very well result in the delegitimization of the court. Remember there is nothing in the Constitution that gives the court final authority over Constitutional intent. That is just accepted practice – it’s not written in stone.
Always a mistake to make Americans truly angry – anything can happen.
Molly Brown:
If you’re correct about the lopsided nature of the opinions of Americans, an amendment would be the way to go. Unfortunately, it would take quite a while, and by then opinions might have shifted.
I’ve always thought the concept of anchor babies and birthright citizenship was wrong.
For me, the key was that Congress had to pass a law to make Native Americans born in this country citizens. While born on American soil, they weren’t fully subject to the jurisdiction of the United States; they had loyalty to their sovereign Indian tribe.
The Constitution is not a suicide pact despite what John Roberts might think.
Just make the decision prospective only. Mark birth certificates. If the mom or dad don’t have proof of citizenship, then baby isn’t a citizen.
Chinese birth tourism just proves what a scam this is.
Neo,
To your point, I think people will jump right away to the futility of the amendment process, if Congress can’t even pass the Save act. They will give up on both the legislative and judicial processes. And you know what they say about boxes…
Convention of the States is a Constitutional process to Amend the Constitution that does not rely on Congress. It beats the other option, another civil war. It is not popular with RINOs, the go along get alongs,aka, those who kick the cancer down the road.
Cornhead makes a good point. Congress has passed many laws regulating citizenship, including for those not born to American citizens or born to citizens abroad. But this solution would require Congress to do something, a high bar.
I agree that a change, practically speaking, should be from now going forward.
Om,
Yes, a Convention of States might be the only way to address the issue rationally. Also clarify the 2nd Amendment. I believe the drive for it is approaching the necessary number of states and an unfavorable ruling from the SC could be the impetus to get to the number needed.
What a glorious reversal that would be, to wrest power right out of the hands of the ‘swamp’!
Below are my comments from 2018 and 2014. I’m consistent!
“Below is my comment from 2014. I agree with myself! Trump is forcing the issue like I wanted.
“This needs to be made a big issue in the November elections;,especially in Senate races.
Pass the bill and force Obama to veto.
Make Hillary take a stand. For once.”
Getting a majority with the Marxists States who want to be Illegals home, nothing will get resolved with birth rights.
I can’t provide the source but apparently a Republican. senator who coauthored the emancipation amendenments said specifically that the amendments were designed to give blacks full citizenship. They did not give citizenship to children born in the USA who were children of visiting diplomats from foreign countries. I’d say that is the definitive rejection of birthright citizenship.
A huge amount has been written about the anchor-brats question, but I think a single sentence should suffice. Here’s the sentence I have in mind, from the editors of Investor’s Business Daily on November 29, 2005:
“Becoming a U.S. citizen should require more than your mother successfully sneaking past the U.S. Border Patrol.”
Even as just a retired physicist with no legal training, I’d be happy to stand before the Supremes, greet them, offer that one sentence as my case, and sit down.
There’s an “argument” against that dose of common sense? All an originalist has to do is ask himself about how the 14th Amendment’s authors (Senator Trumbull et al.) would have reacted to that sentence — the question answers itself.
(My favored sentence doesn’t apply to the whelps of mothers who achieved illegal-alien status by overstaying a visitor’s visa, but I expect the amendment authors would be similarly appalled by the grant of birthright citizenship in such cases.)
Those S.C. Justices who vote that US citizenship does confer upon the children of aliens temporarily visiting the United States and of illegal aliens… have in effect, ruled that the Constitution is a suicide pact. As none can be so politically obtuse as to fail to realize that Congress is unable to pass corrective legislation.
Anyone want to put odds on KBJ’s vote?
@Cornhead: Make Hillary take a stand.
Why not? In the 2016 election a Hillary campaign song asked working-class country men to take a stand for Hillary. A good-looking dude in a cowboy hat sings:
_______________________________________
Now it’s 2016 and this time I’m a-thinking guys.
Put your boots on and let’s smash this [glass] ceiling!
–“STAND WITH HILLARY Music Video”
https://www.youtube.com/watch?v=xJJoJWY1VFM
_______________________________________
I still find it hilarious. The video was so cringeworthy that it disappeared for years. I’m glad someone brought it back to the web.
The actor, Jason Tobias, who lip-synced the song, apparently still has a career, though the song isn’t mentioned in his IMDB entry:
https://www.imdb.com/name/nm4021837/
Skip
Or it may be like the movie Mosul. Look up a few clips on YouTube. It will be the communists and Islam.
Molly Brown on April 1, 2026 at 5:09 pm:
“Yes, a Convention of States might be the only way to address the issue rationally. Also clarify the 2nd Amendment. … What a glorious reversal that would be, to wrest power right out of the hands of the ‘swamp’!”
I agree.
Now maybe you should repeat this comment tomorrow, when it will no longer bear the April 1st date [ just to be safe 🙂 ] .
For all those wishing to gain immediate citizenship in any nation of your choice , just get a jay walking ticket there to demonstrate allegiance to your chosen land.
It’s cheap and quick .
— Molly Brown
Yeah, but that’s not how it would probably go. A Convention of the States keeps getting proposed as a cure for our ills, and it’s a ghastly dangerous and terrible idea.
First, there’s the question of the membership of said convention. Enthusiasts always say that it would be chosen by the State Legislatures. Which is technically true. What they ignore is that those State lawmakers are, almost without exception, partisan politicians. Which means that for something this important, they’re going to follow the instructions of the party leadership.
Which means in practice that the convention members will be appointed by the leadership of the national parties. Which means that the blue State delegates will be chosen by Obama, Pelosi, Jeffries, Schumer, etc., de facto if not de jure.
Now, the right wing is not ideologically unified. A big chunk of the red State delegates can be assumed to be representatives of the libertarian and business wings of the party, because those groups have disproportionate influence in the GOP compared to their numbers.
Guess what? The business wing is globalist. They love open borders. They’re hyper-secular and they’re ‘free traders’. A lot of the libertarian types believe in ‘freedom of movement’ as a basic principle, and they might well go along with ‘any willing worker’. Some of them will definitely want to use such an opportunity to try to write Randianism into the Constitution. Libertarians are at least sympathetic to gun ownership, but the business types mostly are not. Both groups detest MAGA and Trump, openly or privately.
Imagine John Cornyn or Thom Tillis or Lindsey Graham as GOP delegates to the Convention. Because that could easily happen, just as easily as Ted Cruz.
American politics has been dominated since the end of the Cold War by an unofficial but very real alliance of GOP corporatist/business types and Dem social liberal world government dreamers. Do you think that same alliance might not team up to hijack such a Convention? If they did, can you imagine what might emerge from it?
We could very easily end up struggling to prevent the new amendments from being ratified!!
There are two basic methods for ratification, Congress would have to pick one, but either way, it’s entirely possible, maybe probable, that the net result of such a Convention would be conservatives fighting to block ratification, with the business wing on the other side!
And even if we succeeded, even if we got exactly the amendments we wanted and got them ratified…we would still have to fight the fight to get judges appointed who would apply them honestly. So it doesn’t even bypass the need to win the political struggle, we’d still have to do that!
The risks of a Convention of the States are high. The payoff, at best, is highly uncertain. It’s not a superweapon to settle the argument, it’s a high-stakes gamble against the house. Worst case, it could end up triggering a civil war rater than preventing one.
Generally speaking, you amend the Constitution to put your desired changes in it as the last stage, after you’ve won the political argument. If you haven’t won the political argument yet, trying to amend the Constitution is usually futile, and when it isn’t futile it’s as risky as crap.
We have to do it the hard way, there just are no shortcuts to success.
HC68 — re Convention of States:
Well said! It’s risky, with quite a high likelihood of awful outcomes.
The concept sounds good in a utopia of wise, pro-American patriots.
… If only!
Has Rufus T. Firefly been around & I’ve just missed his inputs??
I can’t read everything, but have noticed for at least a week that he seems silent.
Rufus?? You are missed!!