Life, Liberty, Property #140: Surprising Support for Trump’s Birthright Citizenship Policy
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- Surprising Support for Trump’s Birthright Citizenship Policy
- Video of the Week: No Kings Uncovered — In the Tank Podcast #532
- Legislative Pushback Against Government Surveillance in Colorado
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Surprising Support for Trump’s Birthright Citizenship Policy
President Donald Trump broke new ground (as is his habit) last week by attending oral arguments at the U.S. Supreme Court. It was an appropriate choice by the president to attend the lawyers’ arguments over Trump v. Barbara, known popularly as the birthright citizenship case. The issue is that important.
Three anonymous immigrants filed suit last year to challenge Trump’s January 20, 2025 executive order titled “Protecting the Meaning and Value of American Citizenship.”
Trump’s order directs federal agencies not to issue citizenship documents “or accept such documents issued by state, local, or other governments” for children born after February 20, 2025, if at least one parent is not permanently and legally residing in the United States.
The Fourteenth Amendment “has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof,’” Trump’s EO notes. The president then goes on to state the case explicitly:
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
The plaintiffs in the original case, who filed under pseudonyms, argue that Trump’s executive order conflicts with the Fourteenth Amendment and U.S. law 8 U.S.C. § 1401(a), which defines who is a “national” or a citizen of the United States at birth.
Trump-aligned Republicans agree with the administration. Democrats and other leftists side strongly with the plaintiffs. Libertarians and business interests have been generally aligned with the pro-birthright position but somewhat divided on the issue. This makes their opinions on the matter more interesting and enlightening than those of the open partisans.
Representing the large contingent of libertarianism that supports free movement across national borders and thus opposes Trump’s order, the Cato Institute filed an amicus brief with the Court, arguing that Trump’s order “contravenes the Fourteenth Amendment.” The Cato writers cite commonly accepted meanings of critical words from when the amendment was enacted: “At the time of the Fourteenth Amendment’s ratification, the word ‘subject’ meant ‘[t]o bring under the control, power, dominion or action of,’” and “‘Jurisdiction’ meant ‘the legal power or authority of hearing and determining causes.’”
Therefore, the Cato writers tell the Court, “The Fourteenth Amendment granted citizenship to those born in the United States and under its authority.” Later in the brief, the Cato writers state, “Petitioners’ argument fails because citizenship does not depend on the child’s parents; rather, it depends on the child’s birthplace.”
(I should note at this point that words always have a variety of meanings and connotations, and that the sentence starting with “Petitioners’ argument fails because” is a fallacious, circular argument because it assumes the conclusion it is being deployed to prove.)
The Cato writers positively cite a prominent and highly respected libertarian legal scholar and Georgetown University constitutional law professor, Randy E. Barnett, and cowriter Evan D. Bernick for their article titled “The Letter and the Spirit: A Unified Theory of Originalism” and 2021 book The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit. That is particularly indicative of the strong difference of opinion on this issue among libertarians: Barnett has since written an article titled “Trump Is Right on Birthright Citizenship,” published last week in The Wall Street Journal.
Barnett’s argument reflects the rise (and indeed triumph) of originalism in right-of-center constitutional thinking. The conventional wisdom holds that Trump will lose before the Court, Barnett notes. “If the court stays true to the original meaning of the 14th Amendment’s Citizenship Clause, however, the conventional wisdom will prove wrong,” Barnett writes, bluntly.
Barnett lays out the situation as follows:
The clause grants citizenship to persons who meet two conditions: birth in the U.S. and being “subject to the jurisdiction” of the U.S. The dispute is over the meaning of the latter term. Everyone agrees that it excludes at least three classes: children of diplomats, of soldiers from an invading army, and of American Indians maintaining tribal relations. In each of these categories, the status of the child depended on the status of the parent.
The last sentence is of particular importance, as Barnett proceeds to consider what those exclusions imply:
The constitutional debate is about the original concept embodied in the text that explains these exclusions and whether that concept embraces or excludes children born on U.S. soil to parents who are unlawfully or temporarily in the U.S. The court has never squarely addressed this question.
Barnett cites University of Richmond professor Kurt Lash’s examination of the debates in Congress over the Fourteenth Amendment and the Civil Rights Act of 1866 which preceded it. That statute states that “all persons born in the United States and not subject to any foreign power” are citizens, Barnett notes. With the Fourteenth Amendment, Congress intended to embed the Civil Rights Act in the Constitution, not to alter it.
As evidence of that intent, Barnett notes that “Congress re-enacted the same language after the 14th Amendment was adopted, suggesting an identical operation.” The subsequent confusion about the intent of the amendment arises from the fact that its drafters “saw a need for constitutional language that more clearly excluded the children of tribal Indians.”
The congressional debates show that to be the case, Barnett observes:
Sen. Lyman Trumbull (R., Ill.), who managed the Citizenship Clause in the upper chamber, explained that “subject to the jurisdiction” meant “not owing allegiance to anybody else,” whether to a tribe or a foreign power. Rep. John Bingham (R., Ohio), the moving force behind the 14th Amendment, used the same framework, referring after ratification to persons born in the U.S. “and not owing allegiance to any foreign power.” These statements, and others Mr. Lash identified, demonstrate how leading Republicans explained the concept the text was meant to capture: birth plus full political membership.
The Supreme Court affirmed this principle in 1884. Barnett then disposes of other arguments for birthright citizenship and states that the conventional wisdom about the subject is simply wrong.
Another highly prestigious libertarian legal scholar, New York University law professor Richard A. Epstein, submitted an amicus curiae brief to the Court. Epstein has written a forthcoming book about the meaning of the Citizenship Clause, which “refutes the conventional view, under which the Citizenship Clause automatically confers citizenship on children born in the United States to aliens, legal and illegal,” the brief states.
Citing the conventional view that the clause “confers citizenship on everyone born in this Nation—except, perhaps, to certain Indians, for whom the conventional view’s proponents make an ad hoc exception,” Epstein makes the point Barnett affirmed last week, that the amendment was intended to incorporate the Civil Rights Act into the Constitution and does not apply to children born of parents here illegally.
Epstein goes on to examine the history of naturalization law in the United States, establishing an amazingly powerful argument against the birthright citizenship position:
[P]erhaps the strongest evidence against the conventional view comes from laws governing naturalization. Proponents of the conventional view largely or entirely ignore these acts. That is a grievous error. The naturalization acts, from the 1790s through the nineteenth century, bear two key attributes. First, any individual seeking to be naturalized had to take an oath renouncing all loyalties to any foreign sovereign. Second, these acts provided that, when individuals became naturalized citizens, their children would become citizens with them. Nothing in the many naturalization acts confers any earlier citizenship on children born in America to not-yet-naturalized aliens—this despite the fact that, beginning in 1790, these laws did confer birthright citizenship on children who were born abroad to American citizens.
All told, these important, widely discussed federal laws conferred citizenship on aliens and the children of aliens only if they or their parents formally renounced all other foreign allegiances. That is important here because the “subject to the jurisdiction thereof” language in the Citizenship Clause applies to both naturalized and native-born individuals. Absent strong evidence to the contrary, the phrase should be understood as conferring automatic citizenship only on those who are able to satisfy the long-established prerequisites for naturalization.
Because “subject to the jurisdiction thereof” excludes individuals born owing allegiance to a foreign country, the phrase excludes children born to illegal immigrants. Even the most precocious newborn babies cannot renounce foreign ties. Only their parents can. And illegal aliens, by definition, have not done so; they have not gone through the naturalization process and remain subject to foreign authority. So too, then, do their children.
That is so logical and straightforward as to dispose of the birthright citizenship premise entirely on its own. Epstein, however, goes on to shred every other argument for the conventional view, over another 30 pages, all of it superb in argumentation and scholarship, obliterating their case with surgical thoroughness. Here are just a few highlights:
The Citizenship Clause defines the scope of constitutionally conferred citizenship; it identifies the individuals whose relationship to the Nation entitles them to “the privileges or immunities of citizens of the United States.” Id. That is, necessarily, a narrower class of people than those “within the jurisdiction” in the sense of being physically present and subject to the Nation’s laws. The Equal Protection Clause, however, broadly prohibits States from unequally applying their laws to “any person.” That function can be served only if the Equal Protection Clause applies broadly to anyone physically present and subject to the laws of a State. …
[The nation’s naturalization] laws are relevant because they reveal that, both before and after the Fourteenth Amendment’s ratification, only those aliens who renounced their foreign allegiances were eligible for naturalization. (Remember, Congress alone has the power to define what it takes to become a naturalized citizen. See U.S. Const., art. I, §8, cl.4.) Thus, at the time of ratification, exclusive loyalty to the United States had long been a fundamental element of American citizenship. If the phrase “subject to the jurisdiction thereof” covers only those who never had or forswore foreign allegiances, then the Citizenship Clause aligns with that longstanding requirement. If the phrase applies to everyone subject to the laws without regard to their foreign loyalties, it does not. …
The naturalization acts are critically relevant for another reason: under these laws, the citizenship of the child followed the citizenship of his parents. …
These laws, by their terms, entitled children born in America to aliens to become citizens at the same time their parents did. Nothing in the laws suggests that such children were already citizens by reason of birth and thus incapable of being naturalized. That silence is conspicuous, given that Congress did recognize the citizenship at birth of another class of children: namely, those born abroad to American citizens. …
America’s at-most partial embrace of British common law weakens the relevance of what Blackstone had to say about birthright citizenship … .
But, even taken on its own terms, Wong Kim Ark does not resolve this case, because it did not decide whether children born to aliens illegally in the country automatically become citizens. Again, Wong Kim Ark’s parents had “a permanent domicil[e] and residence in the United States.” Wong Kim Ark, 169 U.S. at 653. The Court did not consider how or whether its decision would apply to the children of illegal immigrants. Indeed, its holding extends only to people born to aliens “permitted by the United States to reside here.” Id. at 694. Thus, the question is not whether to apply Wong Kim Ark, but whether to extend it. …
Wong Kim Ark was wrongly decided. If it cannot be overruled, it must at least be cabined, lest the Citizenship Clause be neutered by judicial amendment. That is especially true regarding the Clause’s application to the children of illegal immigrants. For if the Court extends Wong Kim Ark to cover their situation, it will, without constitutional justification, forever remove the issue from the democratic process, disabling “the people acting through their elected representatives” from addressing the citizenship of children born in America to illegal aliens.
Another writer with sterling libertarian bona fides and proven brilliance as a constitutional scholar is Rob Natelson of the Independence Institute. Natelson has written extensively on the issue of birthright citizenship over the years, pointing out problems with the case for birthright citizenship and citing the importance of the “doctrine of allegiance” in an article in Law & Liberty last year, which I wrote about in Life, Liberty, Property #116 last September.
Despite these powerful arguments from libertarians and numerous other critics of the conventional wisdom on the matter, it will be difficult for the Court to reverse the presumption in favor of birthright citizenship. The political ramifications of a decision that would restore the nation’s original understandings of citizenship and naturalization are obviously enormous. Proponents of birthright citizenship are intent on importing a new national polity beholden to leftist blandishments, fundamentally transforming the population demographically to solidify the authoritarian political, cultural, and economic transformation they have pursued for decades. They see immigration restrictions as a deadly danger to their plan.
The Court should not let such considerations affect its decisions, of course, but in a case of this magnitude the temptation is understandable. The Roberts Court, however, has taken some bold stands in recent years. Although the justices’ questions in the oral arguments showed little indication that the Court will decide in favor of the president and the plain meaning of the constitutional amendment in the present case, numerous prestigious scholars such as those that I’ve quoted here have provided them with powerful arguments to do just that.
As Trump’s unprecedented attendance at the oral arguments indicates, the Court’s decision in this case is momentous. It may well decide whether the Constitution the justices have sworn to uphold and defend will prevail and our system survives for at least a few more years.
Sources: The White House; Supreme Court of the United States; Legal Information Institute; The Wall Street Journal; Supreme Court of the United States
Video of the Week
We all know that the public education system in America is rotten, but it is actually even worse than you may realize. There are only so many hours in a school day, and while kids are falling behind in reading, writing, and arithmetic, teachers unions are making sure kids learn about how to be good left-wing activists. Many of these same groups support the “No Kings” protest movement, and we will discuss why that is.
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Legislative Pushback Against Government Surveillance in Colorado
Most Americans probably have only a vague idea of how much government surveillance we all undergo each day. Advances in digital technology and information storage have made it possible for governments to make great strides toward establishment of a real panopticon, with all spaces, public and private alike, as our metaphorical prison. People do not seem to be as worked up about this as would appear to be warranted.
Lawmakers argue that increasing government surveillance will help law enforcement agencies locate and apprehend lawbreakers. They present this as simple common sense.
Under this guise, governments do all this peeping in the name of safety, even as they spent almost a full decade wantonly releasing lawbreakers from custody in obeisance to racial and economic “equity” shibboleths and shrugging in wonder as crime rates spiked upward. The city of Chicago removed its highly effective gunshot-detection system in response to complaints by activists who expressed concerns that it would raise “disparities” in arrest rates of certain groups of people. The city government buckled to these complaints despite the obvious differences in rates of murder, attempted murder, and other violent crimes that motivate the arrest rates for those offenses.
As a result, the most notable effect of all this monitoring of public spaces appears to be revenue for local governments.
The proliferation of license plate cameras demonstrates this reality. The monitoring is done without warrants, which is not in itself an offense against people’s rights. It is the equivalent of an old-time “beat cop” walking around a neighborhood to keep watch on things while idly tapping his billy club in the palm of his nondominant hand. Observing social order and ensuring the apprehension of criminals is an essential element of governments’ fulfillment of their duty to protect our lives, liberty, and property from assaults by others.
Though presented as a boon to traffic safety, cameras that can identify individual vehicles for enforcement of traffic-law violations raise money for local governments without directly reducing traffic congestion or increasing safety. This data is then accumulated into large databases that allow comprehensive tracking of individuals’ movements.
In addition to using this data to spy on those who fall afoul of government workers, governments can sell the information to outside parties, thus creating another revenue stream. In addition, the data might be hacked and stolen by criminals.
At the Heartland Institute web publication Government & Liberty, staff writer Daniel Nuccio reports on an effort in Colorado to restrict local governments’ storage and use of this information:
As introduced, the PEEPS Act would restrict law enforcement agencies’ warrantless access to personally identifiable location information captured more than 24 hours in the past, limit data retention beyond four days outside of narrowly defined exceptions, restrict data sharing, and require annual reports on the use of relevant data-collection tools.
“Technological advances and the growth of commercial data systems have enabled the routine collection, aggregation, storage, and sale of historical location information relating to individuals and vehicles, including information derived from cameras, license plate readers, cellular networks, and other technologies,” the bill states.
The proposed law is currently in the early stages of consideration in the state’s general assembly. The legislation as offered at present is limited to the use of automatic license plate readers and would allow “warrantless access to data collected through ALPRs for up to 72 hours after collection, as opposed to 24 hours, and the retention of collected data for 30 days instead of four.”
In addition to legislative action, individual-rights legal groups are challenging these types of surveillance through lawsuits and public education efforts. The Institute for Justice, for example, “is challenging the government’s arbitrary power to use ALPRs to surveil the entire driving public in court, … working with legislators on model bills to protect Fourth Amendment rights, and shedding light on the issue through the media,” Nuccio reports.
The institute argues that these government surveillance, data storage, and analysis activities are unconstitutional, Nuccio reports:
Michael Soyfer, an attorney involved in the IJ’s fight against ALPRs, says gathering and storing this information is unconstitutional.
“In our view there is an injury to people from having their movements stored in a government database without any suspicion,” told Government & Liberty. “The framers of our Constitution certainly would have regarded searches of that type as unconstitutional, as unlawful, as gross violations of government power.”
“In their own time [the framers] had a very strong counter-reaction to the widespread use of general warrants and writs of assistance, because those often allowed suspicion-less searches, not just because they gave a lot of discretion to the officer,” said Soyfer. “And that’s truly what these systems do. … They allow fishing expeditions. They allow searches without suspicion. They put a deep record of all of our movements … in the hands of every officer who can just go in and search for really any reason, whether it’s idle curiosity, a hunch, whatever it may be.”
Controversy and dispute over this issue will certainly rise as these government surveillance activities increase with the addition of artificial intelligence analysis to governments’ ever-expanding arsenal of weapons against privacy.
Source: Government & Liberty at The Heartland Institute
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