Jonathan Turley seems to agree with me on birthright citizenship and a constitutional amendment
Specifically, on the need for a constitutional amendment to deal with the problem, if SCOTUS won’t:
Those words from Chief Justice John Roberts during this week’s oral arguments signaled that the conservative justices are unlikely to reject birthright citizenship. Of course, nothing is certain until this summer when the Court issues its opinion in Trump v. Barbara. However, we need to consider the need for a 28th Amendment to reaffirm the meaning of citizenship.
As some of us stressed before the oral argument, the odds were against the administration prevailing in the case, given more than a century of countervailing precedent. There are good-faith arguments against reading the 14th Amendment as supporting citizenship for any child born in this country. It is doubtful that the drafters of the 14th Amendment could have envisioned millions of births to illegal aliens. They surely did not imagine foreigners coming to this country for the purpose of giving birth — or even, without ever entering the U.S., contracting multiple U.S. residents to carry babies to term for them as surrogates.
The historical record is highly conflicted. Some drafters expressly denied that they intended for birthright citizenship to be covered by the 14th Amendment.
The final word actually rests with the public. We can amend the Constitution to join most of the world in barring birthright citizenship. There is no more important question in a republic than the definition of citizenship.
We are becoming a virtual mockery as we watch millions game the birthright citizenship system.
It seems quite obvious to me, and as far back as 2014 I’ve said an amendment on this would solve the problem – if it could be passed. I see that in June of 2025, Republican House of Representatives member Andy Barr introduced such an amendment:
If passed, Barr’s amendment would clarify the meaning of the 14th Amendment’s clause that persons must be “subject to the jurisdiction” of the United States to be citizens.
Barr’s amendment would clarify that “a person born in the United States may only be considered ‘subject to the jurisdiction of the United States’ if the person is born in the United States of parents, one of whom is — (1) a national of the United States; (2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or (3) an alien with lawful status under the immigration laws performing active service in the armed forces.”
Nothing seems to have happened on that. No surprise there; it’s very difficult to pass an amendment (or an amendment to an amendment, which Barr’s proposal seems to involve?):
The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval.
Good luck with that; I don’t see it happening. There aren’t many things on which two-thirds of Congress can agree, and this is not one of them, IMHO – although it should be.
It would not surprise me if SCOTUS punts on this and leaves it up to Congress to define “jurisdiction” for the purpose of birthright citizenship. Not ideal because a Dem Congress + POTUS could enshrine it into law for illegals. But it would be awfully hard to get an amendment passed.
Here is another view on the wording of the 14th Amendment (via RealClearPolitics):
https://thefederalist.com/2026/04/06/this-word-in-the-14th-amendment-bans-birthright-citizenship-and-its-not-jurisdiction/
I don’t see this construction gaining any traction, especially given that it was apparently not argued before the Supreme Court. I think we do need an amendment.
RINOs are the obstacle for a Convention of The States to address amending the Constitution. That’s your crowd Bauxite.
I have read the text of United States v. Wong Kim Ark which is currently the controlling SC decision on birthright citizenship. Wong, born in the US, was the son of a Chinese citizen with a work permit here who was insisting on his citizenship.
It is mostly very expansive in defining birthright citizenship. However there is a passage where they say, paraphrasing, that, “it is clear that the father was allowed by the government into the US because he was given a work permit”. This seems to suggest that the decision may not apply to illegal immigrants or that at least their status is more ambiguous. Not sure though that would leave to a definitive rejection of birthright citzenship for illegals.
If SCOTUS leaves it up to Congress to define “jurisdiction” for the purpose of birthright citizenship… it will be a clear case of dereliction of duty and, an implicit declaration that the Constitution is a suicide pact.
@FOAF and Geoffrey Britain…
I can’t think of a situation in which the Supreme Court has given Congress carte blanche to enact a law that construes a contentious clause of the Constitution. I can’t imagine it happening.
If the Court were to punt, it would be something like: The President may not issue an EO of this nature. The EO is stricken. As we have no properly enacted statute before us, we make no ruling on the merits. [The implication being that of Congress were to enact such a statute, the Court would deal with it in an appropriate case.]
This whole topic is quite dispiriting. Please read the first several paragraphs of Watt’s link. Through the “Birth Tourism” part.
I get the idea of stare decisis. A legal understanding that has been in place for something like a century should not be overturned capriciously.
However… On what planet would a legal system interpret the 14th Amendment to allow Birth Tourism????? Ahhrrgghhh!!
The correct way to deal with this is to thoroughly read and understand the Congressional debates when the Amendment was written and passed. I haven’t done this. I have read some more recent pros and cons concerning exactly that debate. My guess is that it isn’t even close. Must be “resident” and “under the jurisdiction.”
“Reside” is as important a word as jurisdiction here, as the piece in the Federalist argues. If you don’t “reside” in the USA because you are a tourist, international student, or illegal alien, then you are not a citizen just because you are born in a U.S. jurisdiction. Booker T. Washington and WEB DuBois might both agree.
Having no faith in the Supreme Court, they will split the baby I half at best, allowing statis quo at worse.
Congress, with 1/4 Marxists, another 1/4 wanting not to upset the apple cart has no desire to fix this.
Our situation of illegal immigrants is only different that Europe’s want to take over, our Illegals just want to take everything they can get.
In the words of the estimable John Derbyshire, “We are doomed.”
@ Steve (Retired/recovering lawyer): That was a great book.
It’s not that SCOTUS won’t it’s that SCOTUS can’t. There’s long-established precedent they’ll be bound to, as they should, and we don’t want the court legislating from the bench.
@ Variant – “It’s not that SCOTUS won’t it’s that SCOTUS can’t. There’s long-established precedent they’ll be bound to, as they should, and we don’t want the court legislating from the bench.”
You forgot to add “unless the ruling favors the Democrat / Leftist position.”
Let me make one thing perfectly clear: SCOTUS can do anything it jolly well wants to. They are the only court hat is NOT “bound” by precedent.
Supreme Court decisions have overturned MANY precedents that were wrongly decided by former Justices, or by lower courts, or by administrative judges, or were just de facto operations aka “common law.”
If a procedure is unConsitutional then it is wrong. Period.