President Trump's Executive Order on Birthright Citizenship is Unconstitutional

Trump is doing many great things but trying to get rid of birthright citizenship is not one of them

Section 1 of the 14th Amendment says that "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." Trump's defenders argue that children born of illegal immigrants in the United States have never entered into a social compact that makes them citizens of the United States protected by U.S. law.

Samarth Desai, a second year law student at Yale Law School, has a devastating response to this claim, which was recently argued for by Georgetown Law Professor Randy Barnett and University of Minnesota Law Professor Ilan Wurman in an op-ed in the New York Times. Desai's article, with which I totally agree, appears below.

Birthright Citizenship: A Test Case

Samarth Desai

President Trump's birthright-citizenship executive order is illegal and unconstitutional, and no "allegiance-for-protection theory" can save it.

No one doubts that children born on American soil to unauthorized migrants were "born … in the United States." So if these children are not birthright citizens, it must be because they were not "born … subject to the jurisdiction" of the United States despite being born under the American flag.

Two prominent scholars claim, in the New York Times and elsewhere, that the children of unauthorized migrants were not born "subject to the jurisdiction" of the United States because their parents disobeyed the laws by entering illegally. According to these scholars, (1) jurisdiction depends on obedience (as a condition of a theoretical social compact), and (2) the disobedience of a parent can be imputed to a child. Unauthorized migrants "gave no obedience or allegiance to the country when they entered," these scholars say. "[T]hey and their children are therefore not under the protection or 'subject to the jurisdiction' of the nation."

This allegiance-as-obedience theory has an obvious and simple test case: Confederate rebels and their children.

If Professors Barnett and Wurman are right, then Confederate rebels and their children would also not have been "subject to the jurisdiction" of the United States, and it would have been perfectly constitutional to deny or revoke their birthright citizenship. Confederate rebels were, after all, paradigmatically disobedient. In the words of the Prize Cases (1863), they had "declared their independence," "cast off their allegiance," "organized armies," and "commenced hostilities" against the United States. True, Confederate rebels, unlike unauthorized migrants, were at one point citizens, but this distinction is irrelevant if jurisdiction requires the existence of a social compact conditioned on obedience to the laws.

The Barnett-Wurman theory fails this easy test case. In 1867, the Fourteenth Amendment's framers—John Bingham among them—were emphatic that Confederate rebels remained "allegiant" and therefore "subject to the jurisdiction" of the United States despite having flagrantly and treasonously disobeyed the laws. In doing so, they expressly repudiated the allegiance-as-obedience theory; obedience was a duty of citizenship, not a condition. And whatever the sins of the fathers, absolutely no one (as far as I can tell) suggested that the children of Confederate rebels could be stripped of their birthright citizenship because of what their parents had done.

Confederate Rebels

The impetus for this key 1867 episode, almost entirely ignored until now, was an effort to suspend the citizenship of a wide swath of former Confederate rebels. Language proposed by Thaddeus Stevens provided

[t]hat all persons who, on [March 4, 1861], were of full age, and who at any time held office, either civil or military, under the government called the "Confederate States of America," or who swore allegiance to said government, are hereby declared to have forfeited their citizenship and to have renounced allegiance to the United States ….

Ohio's John Bingham declared the bill containing this provision "a clear, palpable departure from the intent and letter of your constitutional amendment"—that is, the Fourteenth Amendment, which Congress had proposed to the states just six months earlier and of which Bingham had been one of the principal authors. "[T]he Congress of the United States has no color of authority for providing by law," he explained, "that a million persons, natural-born male citizens of this Republic and resident therein, are no longer citizens of the United States."

But what about jurisdiction, allegiance, and obedience? Tennessee's Horace Maynard asked just that: "I would ask the gentleman if he recognizes the right of citizens of this Government to throw off their allegiance?" "Not at all, while they remain within its jurisdiction," Bingham replied. "[T]heir treason and revolt does not make them a foreign nationality, nor put them or the States in which they reside beyond the jurisdiction of the United States, nor absolve them from their allegiance to this Government, nor make the faithful, law-abiding citizens of their States alien enemies and traitors."

Contrary to Professors Barnett and Wurman, it did not matter that Confederate rebels had disobeyed the laws, that they had engaged in "treason and revolt." They were still subject to "the jurisdiction of the United States." Their acts did not "absolve them from their allegiance to this Government." Nor could the rebels' acts be imputed to "the faithful, law-abiding citizens of their States." All born on American soil and under the American flag were "natural-born … citizens." End of story.

Illinois's Jehu Baker echoed Bingham. Twice quoting the words of the Citizenship Clause, Baker insisted that "the terms of that amendment cover those persons who have engaged in armed revolt against the United States." Confederate rebels "were born in the United States; they are subject to the jurisdiction of the United States; and it results by force of the first article of the proposed amendment that they are citizens of the United States." Like Bingham, Baker denied that disobedience of the laws rendered a citizen nonallegiant: "[T]hey have not by their act of rebellion absolved themselves from allegiance to the supreme sovereignty of the Republic."

There's more:

• If the Fourteenth Amendment were already to have been ratified, "this bill would be in plain and direct violation of that amendment itself," Kentucky's Lawrence Trimble avowed, "because that amendment declares that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.'"
• "I contend, Mr. Speaker, that no rebellious act on the part of the rebels could dissolve their allegiance to the Government of the United States," Pennsylvania's George Miller maintained, "and consequently they are amenable to its laws."
• "How, then, can Congress make aliens of native-born citizens?" Kentucky's Andrew Ward asked in disbelief. "[I]f their citizens are not citizens of the United States I would be obliged to the author of this bill if he will tell me of what country they are citizens?" (Bingham would ask the same question later that year: "If a man is not a citizen of the country in which he was born, in God's name of what country is he a citizen?")

To be sure, some members of Congress did subscribe to the allegiance-as-obedience theory. In words that Professors Barnett and Wurman could have written, Indiana's George Julian argued: "The citizen's duty of allegiance and the nation's obligation of protection are reciprocal. The one is the price of the other, and the compact is alike binding upon both parties. When the rebels broke this compact by attempting the crime of national murder their right of citizenship was forfeited, and the nation has the undoubted right to declare the consequences of that forfeiture by law." Ohio's Samuel Shellabarger similarly called attention to the "contract" citizens make with their nations.

The problem is that this minority view—the view that disobedience precluded allegiance and therefore jurisdiction—lost in the fair and open field of debate. After almost two weeks of discussion, Bingham once more reminded his colleagues that the bill "recede[d] from the principles of the pending constitutional amendment." A majority that included Bingham then voted to kill the bill containing the problematic provision.[1] That provision would never again see the light of day, and no similar language claiming that Confederate rebels had "forfeited their citizenship" and "renounced allegiance to the United States" would appear in any of the Reconstruction Acts. The provision had been widely reprinted in newspapers across the land, as had some of the speeches opposing it on constitutional grounds. Informed ratifiers would thus have been well aware of the provision's death and the debates leading up to it.

Children

All that debate was about the parents—to say nothing about the children. Throughout the entire episode, not even the provision's defenders ever seem to have broached the possibility of denying birthright citizenship to children who had been born to Confederate rebels during the war.

This should not surprise us. Imputing the acts of parents to their children and denying them citizenship on that basis would have "work[ed] Corruption of Blood" in violation of the spirit of Art. III, sec. 3, cl. 2, and debased the core birth-equality principles of the then-pending Fourteenth Amendment. It also would have transgressed basic principles of humanity—Lincolnian humanity—of "malice toward none" and "charity for all," none more than the "orphan." That March, Bingham backed a joint resolution providing for relief to destitute Southerners. His words are instructive:

The unoffending little children are not enemies of your country or of mine; the crime of treason is not upon their souls. Surely, surely they are not to be denied your care…. "Little children at least are innocent, for God wills it so." … Do not, then, I pray you, ask that this Government shall degrade itself in the presence of the civilized world by refusing supplies to its own citizens who are famishing for bread ….

Professors Barnett and Wurman's argument has other problems, too:

1. It treats the Trump executive order's denial of birthright citizenship to the children of "lawful but temporary" migrants—migrants invited to America, like students on student visas and workers on temporary-worker visas—as "a more complicated question not addressed here." But that part of the order is clearly illegal even on Professor Barnett and Wurman's own terms, since lawful migrants entered the United States in obedience to its laws.
2. It confuses the sufficient with the necessary in treating the citizenship "status of children born to citizens residing within enemy-occupied territory" as supposedly "anomal[ous]" under the dominant view of birthright citizenship. The Citizenship Clause defines what is sufficient for American citizenship, not what is necessary. Nothing prevents grants of citizenship above and beyond constitutional birthright citizenship. (That is why Ted Cruz could run for president in 2016.)
3. Similarly, it mistakenly treats as supposedly anomalous the noncitizenship "status of children born to foreigners on foreign public vessels in U.S. waters." Foreign public vessels flew foreign flags, not American flags, which is why "foreign public ships" was one of the four exceptions listed in Wong Kim Ark (1898).
4. Speaking of Wong Kim Ark, it reads that case too narrowly. The language of Wong Kim Ark is utterly clear: children born on American soil and under the American flag are birthright citizens "with the exceptions or qualifications (as old as the rule itself) of [1] children of foreign sovereigns or their ministers, [2] or born on foreign public ships, [3] or of enemies within and during a hostile occupation of part of our territory, and [4] with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." Yes, Wong Kim Ark's facts involved parents with a "permanent domicile and residence in the United States," but the decision never suggested that its reasoning was in any way limited to the children of such parents. (Wong Kim Ark, which glossed the Citizenship Clause, in turn served as the backdrop for two congressional immigration statutes enacted in 1940 and 1952.)
5. It does not sufficiently explain the birthright-citizenship status of the children of antebellum slaves illegally smuggled into the United States in violation of laws banning the transatlantic slave trade, slaves who had not entered into a social compact with the United States either at the time of their birth or at the time of their coerced migration.

But most of all, the allegiance-as-obedience theory collides with the considered judgment of John Bingham and other framers, publicly articulated in 1867 in the very moment that the states were ratifying the Fourteenth Amendment. If Confederate rebels who took up arms against the United States nevertheless owed it allegiance and were subject to its jurisdiction, then of course unauthorized migrants, lawbreakers though they were, are subject to U.S. jurisdiction on U.S. land. And if even Confederate rebels could not constitutionally be stripped of their birthright citizenship, then the legal case for denying birthright citizenship to legally innocent children born on American soil and under the American flag is feeble indeed.

[1] More precisely, they voted to refer the bill to committee. But as Stevens complained, and as all understood, "the reference of the bill to that committee is the death of the measure."

Comments

[steve sturm]

Question, and sorry if I missed it by sleeping through history class: Calabresi makes reference to attempts to do so, but were the Rebels ever legally deemed to have lost/forfeited/surrendered their US citizenship? Notwithstanding the South’s claims, I thought Lincoln (and the North) viewed the succession as bogus and that everybody in the wrong side was still subject to American law (jurisdiction).

[Riva]

No, the attempt to secede wasn't allowed. That was what that war thing was about.

[Seaboltm]

Yes, what you said. Lincoln knew he was walking a tight rope. Hence the emancipation proclamation did not apply across th country. So yes Lincoln held the belief that the southerners had not truly left the union but were being led a renegade leadership. I think a close analysis of history destroys his confederate argument, which destroys most all of his argument.

[Kazinski]

Not exactly, since after the war the north required the Southern States to apply to be readmitted to the Union to be able to resume full rights as states, among the conditions for re-admission was ratification of the 13th, 14th, and 15th amendments.

But their status until re-admission was more as territories, and citizens of the the territories were indisputably citizens.

State Seceded Readmitted

1. South Carolina Dec. 20, 1860 July 9, 1868
2. Mississippi Jan. 9, 1861 Feb. 23, 1870
3. Florida Jan. 10, 1861 June 25, 1868
4. Alabama Jan. 11, 1861 July 13, 1868
5. Georgia Jan. 19, 1861 July 15, 1870*
6. Louisiana Jan. 26, 1861 July 9, 1868
7. Texas March 2, 1861 March 30, 1870
8. Virginia April 17, 1861 Jan. 26, 1870
9. Arkansas May 6, 1861 June 22, 1868
10. North Carolina May 20, 1861 July 4, 1868
11. Tennessee June 8, 1861 July 24, 1866

*Second readmission date. First date was July 21, 1868, but the representatives were unseated March 5, 1869.

[Brett Bellmore]

The fact of the matter is that they were just doing things in an ad hoc manner: If it was helpful to treat them as not actually having seceded, they were treated that way. If it was useful to treat them as actually having left, they got treated that way.

There was no logic to it except "What lets us do what we want?"

[Kazinski]

That's what victors do when they win a war, and have absolute control via martial law over the losers.

[Frank Drackman]

So if they couldn’t secede why did they have to Un-secede?

[Ama Valde Intellectum]

NO, Lincoln saw that denial of citizenship would mean there is a unity above the national unity. You can't secede,very simple

In the 1869 case Texas v. White, the Supreme Court ruled that states cannot secede from the United States

So now at least if you secede you admit to never following the law. Quite brilliant

[pdshaw]

During the War, the basic framework was set forth in Lincoln's Proclamation of Amnesty and Reconstruction in which pardon would be given for anybody who took an oath of allegiance to the Union, with exceptions for certain governmental officials. The spirit was used in military paroles such as General Lee's. When Johnson became President he initially appeared to want to reverse these policies, but when word got out that he intended to charge Lee with treason, Grant threatened to resign because doing so contradicted the parole granted at Appomattox that he believed was Lincoln's desire. Sherman agreed in this. Rebuffed Johnson gradually expanded Presidential pardons, so that by the time some people talking in 1867 about citizenship stripping, almost everybody potentially effected had been pardoned.

Possibly as important, the SCOTUS had ruled in Cummings v. Missouri (decided Jan 14, 1867) that an ironclath oath requirement to hold office violated the Constitution's ex post facto and bill of attainder prohibitions in requiring people not only to swear to uphold the Constitution, but swear they hadn't joined or given aid and comfort to the rebellion. The bill linked above is dated January 16, 1867, so I would assume it's trying to work around the SCOTUS decision with a citizenship angle and lawmakers are arguing opportunistically as to whether the 14th Amendment would authorize something that was not considered an issue at the time it was drafted.

[No One Of Consequence]

In Texas v. White, 74 U.S. 700 (1869), the Supreme Court ruled that secession never happened. All ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were "absolutely null."

[Dan Schiavetta]

Made things simpler, for sure.

[SilverlakeBodhisattva]

So, there’s a point at which even Calabresi says “No more” to the coup-meisters!

[Riva]

I wish there were an end to these asinine attempts to promote the cause of birthright citizenship to illegals. Methinks the open borders crowd is getting a little desperate grasping on sophomoric essays by second year law students.

[windycityattorney]

The asinine attempt is the 14th amendment itself and its well settled legal meaning for some 100+yrs. Given this legal history, the burden is on those who say everybody else [including multiple bodies of Congress who passed laws and established regulations consistent with this interpretation] had it wrong all along, no?

Who, in this actual scenario, is 'reaching' or grasping at straws?

[Riva]

Settled? Neither open borders law professors, their students, or democrat activists get to settle anything. But in a sense you’re right but don’t know it. Wong Kim Ark did legally settle that the offspring of parents who have a “permanent domicil[e] and residence in the United States” are citizens at birth. That doesn’t include illegals. Or tourists. But would encompass the children of confederate soldiers residing in states that never actually seceded from the union, notwithstanding their fathers may have engaged in some naughtiness against their country. (Incidentally, they were all pardoned)

[David Nieporent]

Wong Kim Ark legally settled that all persons born and naturalized in the United States, which has absolutely zero to do with domicile in any way, are citizens at birth. It includes illegal immigrants, tourists, people who accidentally wandered across the border while camping in the wilderness, students, H1Bs, people who washed ashore after shipwrecks, people here on business, and every other category except the ones expressly excluded. You've been told this. But since you're just a bot programmed to repeat racist lies rather than to respond substantively to anyone, you're forced to keep saying something that everyone knows isn't true.

[Mike Hansberry]

What was the question settled by the Wong Kim Ark court?

"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."

[David Nieporent]

Yes, and why must the question have been answered in the affirmative? Because, as the court explained at great length, all children born in the U.S. were citizens at birth unless they fell into one of the specified exceptions (diplomats/invading armies/Indians.)

[David Nieporent]

I reiterate that by the reasoning employed by some here, in which the mention by SCOTUS of the fact that the parents were domiciled here means that the decision only applies to people whose parents were domiciled here,¹ the mention by SCOTUS of the fact that parents were of Chinese descent would mean that the decision only applies to people whose parents were of Chinese descent.
​​
​​
¹Most illegal aliens who give birth are also domiciled here, by the way. That they are not authorized to live here doesn't change the fact that they do live here.

[Mike Hansberry]

Specified exceptions? Those exceptions you list are not specified in the text of the 14th amendment, they are deemed to not come under "and subject to the jurisdiction of the United States" requirement of the 14th.

The question for today is whether children of persons barred from entry would also be deemed to not meet same requirement.

Wong Kim Ark does not answer that question as Ark's parents were legal residents (not barred by the later Chinese Exclusion Act) at time of his birth, which made him a citizen via the 14th amendment, so that the Chinese Exclusion Act could not apply to him.

An on point case would be one in which a child of persons excluded from entry (but who nonetheless illegally entered the country and gave birth to said child) would be a citizen as per the 14th.

[David Nieporent]

Specified exceptions? Those exceptions you list are not specified in the text of the 14th amendment, they are deemed to not come under "and subject to the jurisdiction of the United States" requirement of the 14th.

1) I assume you have an extra 'not' in your statement, and you meant to say that they are deemed to come under "and subject to the jurisdiction of the United States." In which case, yes, I agree.
2) We're not talking about the text of the 14th Amendment right now; we're talking about the Wong Kim Ark decision where the Supreme Court set forth what the 14th Amendment means. And those specified exceptions are indeed specified in the text of the WKA decision.

The question for today is whether children of persons barred from entry would also be deemed to not meet same requirement.

Wong Kim Ark does not answer that question

It absolutely does. It defines what the words mean, tracing their meaning back hundreds of years, and children of illegal immigrants fit within that meaning. Once a court says that "pets" includes "dogs," you don't get to argue, "Well, it doesn't say anything specifically about beagles, so it's not settled whether those are included." The word "dog" includes "beagles," so they are.

[not guilty]

"An on point case would be one in which a child of persons excluded from entry (but who nonetheless illegally entered the country and gave birth to said child) would be a citizen as per the 14th."

I have cited two SCOTUS decisions downthread where children born in the United States to deportable aliens were recognized by all justices to be U. S. citizens.

United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957), and INS v. Rios-Pineda, 471 U.S. 444 (1985). The first involved Greek parents who entered lawfully then overstayed and gave birth. The second involved flat out illegal entry by Mexican parents.

[Riva]

The birthright citizenship of the child was NOT at issue in eiher of those cases. Not sure why you seem determined to misrepresent the holdings but, just to be clear, those cases absolutely did not decide the issue of whether children born in this country to illegals are citizens at birth under the 14th amendment. I kind of hope some activist relies on this nonsense. They'll be laughed out of court.

[not guilty]

Every participating justice in both cases opined that the children were United States citizens. If the children were not citizens, the statutes related to suspension of the deportations would have been inapplicable, and the parents would not have gotten before any federal court to begin with. The children's citizenship is accordingly a fact essential to standing, which in turn is essential to federal subject matter jurisdiction -- regardless of how much you cavil, Riva.

Here is a pretty good primer on distinguishing obiter dictum from ratio decidendi: https://thisvsthat.io/obiter-dictum-vs-ratio-decidendi In federal court it matters not one whit whether any party has raised an issue. Subject matter jurisdiction is always at issue in every federal court at each stage of proceedings. Rule 12(h)(3) of the Federal Rules of Civil Procedure is mandatory: "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."

"[L]ack of federal jurisdiction cannot be waived or be overcome by an agreement of the parties. An appellate federal court must satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under review." Mitchell v. Maurer, 293 U.S. 237, 244 (1934). As SCOTUS opined in Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986):

"And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it. When the lower federal court lacks jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit." United States v. Corrick, 298 U.S. 435, 440 (1936).

"Where . . . Congress has authorized public officials to perform certain functions according to law, and has provided by statute for judicial review of those actions under certain circumstances, the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff." Sierra Club v. Morton, 405 U.S. 727, 732 (1972).

If the children in the United States of Mr. and Mrs. Hintopoulos and of Bernardo Rios-Pineda and Estarnilada Ramos de Rios were non-citizens based on their parents' status, the parents would have lacked standing to seek federal habeas corpus relief.

[Riva]

No one challenged the citizenship of the child. The issue was not raised, argued or decided. It didn't matter for the purposes of the deicion how the child became citizen and the Court did NOT make a holding on that matter. But you run with that if you want. I can't stop you making a fool of yourself.

[not guilty]

The children's citizenship was a fact essential to the federal courts' exercise of jurisdiction. The issue was raised when Mr. and Mrs. Hintopoulos filed their habeas corpus petition and when the Rios-Penada respondents filed their appeal from the Board of Immigration Appeals order. The burden of pleading and proving federal jurisdiction remains at all stages on the party invoking such jurisdiction.

Any recitation of fact in a judicial opinion which is essential to the federal courts' exercise of jurisdiction is necessarily part of the ratio decidendi. Such a factual determination can no more be dictum than a circle can be rectangular.

[Riva]

We've been down this stupid road before NG. I'm starting to lose count. You're wrong. Not possibly wrong. Not room for opinion wrong. Just absolutely f'ing wrong. “The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, and such assumptions—even on jurisdictional issues—are not binding in future cases that directly raise the questions.” United States v. Verdugo-Urquidez, 494 U.S. 259, 272 (1990) (internal citations omitted); Bryan A. Garner et al., The Law of Judicial Precedent § 4, at 84 (2016)(“Judicial opinions are always premised on a series of assumptions about what the law is. Yet those assumptions—whether implicit or explicit—aren’t generally considered precedential.”)

[Riva]

Crazy Dave’s above rant, laced with insult and ignorance, with more than a dash of stupidity (actually over-seasoned), is why I’ve muted the obnoxious troll.

[David Nieporent]

Oh, no! Bot has falsely claimed it has muted me! Whatever shall I do?!?!?

[Riva]

And, it should be noted that domicile requires a legal presence in the country. A illegal trespassing over the border does not have a domicile in Texas. Sure hope, for the sake of his/her/its potential clients, the obnoxious troll is not thinking of practicing immigration law.

[Kazinski]

No:
"Trump is doing many great things but trying to get rid of birthright citizenship is not one of them"

He wants more, much more, but just not this.

I concur.

[Ama Valde Intellectum]

But 'concur' says nothing.
Are we to think that with both of you it is total approval or nothing. That what the President is measured against is you two !!!!

[Kazinski]

No, I measure the President against my own likes and dislikes.

I really like firings and closing or gutting departments and laying waste to the bureaucracy.

I dislike talk of Canada as the 51st state, or annexing Greenland or Gaza.

I am generally negative on tarrifs, but reciprocal tariffs seems like a good idea getting our trading partners to remove their own barriers.

Its cafeteria style, not the 5 course set meal.

[Jason Cavanaugh]

"I really like firings and closing or gutting departments and laying waste to the bureaucracy."

Then you don't like our Constitution, because he has no authority to do such things when they exist because of duly passed laws still on the books.

Fuck you. Trump and his supporters are enemies of America and should die.

[not guilty]

"So, there’s a point at which even Calabresi says “No more” to the coup-meisters!"

Hey, even a blind hog finds an acorn every now and then.

[Kleppe]

"This allegiance-as-obedience theory has an obvious and simple test case: Confederate rebels and their children."

Ironically, this is actually a pro-Confederate argument. The federal government's position during and after the Civil War was that the confederate states had never seceded at all. It is the southern states that claimed the confederacy ever existed as a legitimate (albeit short-lived) form of government.

[Noscitur a sociis]

The federal government's position during and after the Civil War was that the confederate states had never seceded at all.

To the best of my knowledge it did not, however, dispute that they were trying to do so—which is all that’s needed here.

[Michael P]

I had no idea that insurrection or rebellion waived citizenship. Is that hiding somewhere in the Fourteenth Amendment?

[David Nieporent]

Sigh. Did you bother to read? The Barnett theory is based on a compact in which allegiance is the quid given by the person in exchange for the quo of citizenship. Rebellion would of course break that compact, so if that theory were valid, then the confederates wouldn't be citizens.

Rebels have far less allegiance to the U.S. than people who immigrate here illegally.

[Michael P]

Of course! (/s)

[JoeFromtheBronx]

"Trump is doing many great things but trying to get rid of birthright citizenship is not one of them"

RINO!

[Roger S]

The Confederate rebels were disloyal and treasonous, but loss of citizenship was not a punishment for that. So the whole discussion is irrelevant. The rebels were citizens, and so were their children.

Compare to the children of illegal aliens. The aliens and their children are loyal to a foreign power. They can all be deported to that foreign power. The Confederacy had a government for a while, but not one that the USA recognized, and not one that existed after the Civil War. There was no way to deport the rebels to the Confederacy. They were subject to USA jurisdiction, at least when the war was over.

Calabresi's whole argument is silly.

[windycityattorney]

What governments are newborn babies loyal to, Roger?

Is that government in the room with us right now?

[Roger S]

The government of the citizenship of the parents. The babies go with the parents.

[not guilty]

"The government of the citizenship of the parents. The babies go with the parents."

That is simply not true, even in the case where the parents' foreign citizenship devolves upon a child born in the United States. The law has long recognized that such a child may be a dual citizen of the United States and of its parents' native country. See Hirabayashi v. United States, 320 U.S. 81, 97 (1943) (Petitioner born in Seattle in 1918, of Japanese parents who had come from Japan to the United States, was dual citizen of the United States and Japan.). See also Kawakita v. United States, 343 U.S. 717, 723 (1952) ("The concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both.").

[Roger S]

Those wartime cases are unlikely to be relevant today.

[David Nieporent]

To quote from a Fifth Circuit case that was discussed in Friday's Short Circuit: "[P]recedent has no expiration date."

[Ama Valde Intellectum]

But the law does not address the babies !! False argument. Constitution 101

[Milesthatsme]

Let me steel man this argument that the rebels’ situation is not dispositive (even though I agree with Calabresi and Desai’s conclusion).

It appears the principal object of the 14th Amendment, notwithstanding side debates, was *acquisition* of citizenship, not its retention. Apart from explicit renunciation, there are means for loss of citizenship that still appear on the books (notwithstanding the 14th): https://www.govinfo.gov/content/pkg/USCODE-2011-title8/pdf/USCODE-2011-title8-chap12-subchapIII-partIII-sec1481.pdf. Treason is among them.

A similar argument plays out with children. To the extent that one cannot visit loss of citizenship of Confederate rebels upon their children, there is an equally plausible (moral) argument that those who fought against the North were not *born* rebels. Thus, they cannot be said to have retrospectively waived their *birthright* citizenship. They may, however, for acts upon attaining the age of majority (in USC above), lose it. So discussion of loss of citizenship sheds little light on the 14th.

All that said, the meaning of “subject to” and “jurisdiction” has a plain meaning that has been understood for many hundreds of years. It would be an extraordinary “get out of jail” card for aliens if it meant a pledge of loyalty was needed for US laws to apply. It would require truly extraordinary evidence that the phrase only has that meaning in this solitary context.

[cannpro]

Wow, I actually argree with Steven for once, despite his atrocious writing style.

[Not Represented]

These arguments are futile by the Democrats and the Far Left. Anyone who comes to this country illegally and has a child on US soil, that Child is NOT a US Citizen

[MollyGodiva]

The Constitution and 156 years of history disagree.

When the amendment was ratified the children of all immigrants were citizens. Thus the same must be held to be true now.

[Ama Valde Intellectum]

But you wouldn't even use the word 'immigrants' if there were no distinction 'legal' or 'illegal" when you say "all students will report to the gym and a teenager is in the school under trespass he is NOT a student. YOu cannot make a law about the rights of someone not under the law to begin with. Are you arguing Jus Gentium???

[hobie]

"History and Tradition"

Yowza! This is gonna be a head-scratcher for Harlan Thomas. How's he gonna square his two imperatives (the other being Q-MAGA)?

[BrotherMovesOn]

Well! That settles it then. Thanks Not Represented!

[Sarcastr0]

Yeah the OP is a far left Dem.

[Michael P]

He's certainly well-respected by you all, and you take his arguments seriously for non-instrumental reasons, though, right?

[Sarcastr0]

No, he's not. And I'm not appealing to his authority.

I am pointing out Not Represented is an idiot.

[Roger S]

If Confederate rebels who took up arms against the United States nevertheless owed it allegiance and were subject to its jurisdiction, then of course unauthorized migrants, lawbreakers though they were, are subject to U.S. jurisdiction on U.S. land.

The difference is that the unauthorized migrants have allegiance to a foreign power, and can be deported to that power. The rebels had no such allegiance, and could not be deported.

[Krayt]

They are abandoning their allegiance to their home country to come to America to live free and make a better life for themselves.

As Ernest Borgnine's American née Russian character in Ice Station Zebra said when doubted, "I am an American by choice, not by accident of birth!"

Ironic given some of you "like Putin" and want to import Russia wholesale.

Be ashamed. Be very ashamed.

[Michael P]

There are ways to abandon one's allegiance to one's country, but illegally crossing borders and overstaying a visa are not among them.

[hobie]

Lot's of hillbillies here have way more allegiance to Israel than America. Does that make them less American?

[Dr. Ed 2]

NO!
Two words: Andrew Johnson.

He was able to remain a US Senator from Tennessee because the Union refused to recognize the Confederacy. They considered the rebels to still be US citizens.

The entire argument goes out the window -- it would be like Charles Manson having a child -- father is a criminal, but still an American. And the mothers weren't combatants.

[windycityattorney]

To use your Manson analogy, it would be more like one of Manson's groupie co-conspirators got pregnant and the govt charged the baby along with the mother for her crimes. Is that a bridge too far?

Isn't that fundamentally what this is all about? The parents 'trespassed' "broke our laws" and the parents' wrong is passed to the innocent child like eye color or DNA?

[TwelveInchPianist]

If diplomatic status can be passed to the innocent child like eye color or DNA...

[shawn_dude]

...then it is possible to further amend the Constitution to create an explicit exclusion of the children of illegal immigrants just as the children of diplomats are excluded.

Note that diplomats and their immediate families* are excluded from some aspects of US law through their diplomatic immunity--a status not shared by undocumented immigrants or asylum seekers.

*there are some exceptions to this.

[Dr. Ed 2]

You are making the mistake of presuming this to be punitive when it is merely factfinding.

But if you want an example, Michael & Robert Meeropol, the children of Julius & Ethel Rosenberg. They were orphaned when the government executed their parents in 1953 -- so sorry, your parents' crimes made you an orphan.

Here, your parents' crimes don't make you a citizen.

[Frank Drackman]

My dad used to joke that the only reason my mom married him was to get rid of that Rosenberg name.

[Dr. Ed 2]

https://nypost.com/2018/10/08/some-of-hitlers-last-relatives-are-living-secret-lives-on-long-island/

[F.D. Wolf]

This is among the most absurd defenses of "birthright citizenship" I have yet seen. If the Confederates (and their children) were not citizens of the United States, where exactly did their citizenship lay? Nowhere?

This argument suggests that being a non-citizen, and labeled as such, is a "punishment" and some grievous affront to one's human dignity. If my wife and I travel to France, we are aliens there. If we have children there, they are not French citizens. We wouldn't gnash our teeth and wail, "How dare your government heap such an egregious indignity upon these poor, innocent children. You are working a 'corruption of blood' upon them!"

If a couple from Australia arrives in the U.S. on a tourist visa (or no visa at all) and has a child here, that child is not a U.S. citizen, but an Australian citizen. No one is declaring the child stateless. No one is punishing the child or working some cruel affront upon the child. That is not "corruption of blood."

[MollyGodiva]

What you say makes sense, and good arguments as to why the US should not have birthright citizenship. However that is not what the Constitution says nor how it has been understood to mean when it was ratified and for 156 years.

[Roger S]

This issue has lingered for a long time, and Scotus will have to consider it for the first time.

[ducksalad]

It's false to say it's lingered and it's false to say it's the first time.

They've ruled on at least one case where the parents were here illegally and citizens of a foreign country. Scroll down a look at ng's quotes from Hintopoulus.

They've also ruled on the meaning of "jurisdiction" in the context of the 14th Amendment and found that it means subject to the laws, in a case where the state specifically tried out the allegiance and obedience argument and it was mentioned and rejected in the opinion.

To get the result you want the SC would have to openly reverse itself.

[Roger S]

That court seemed to think that policy considerations favored anchor babies. Not true anymore.

[Ama Valde Intellectum]

It is what the Constitution says. And hardly sane to think about 70 million voters are in the dark

[David Nieporent]

This is among the most absurd defenses of "birthright citizenship" I have yet seen. If the Confederates (and their children) were not citizens of the United States, where exactly did their citizenship lay? Nowhere?

It is not a defense of birthright citizenship at all; it is an argument against the compact theory of citizenship espoused by Barnett.

[jslinner]

there is no such thing as unconstitutional anymore

[Raccroc]

Here is your problem: "lawbreakers though they were, are subject to U.S. jurisdiction on U.S. land."
That is not what it says. It says: "subject to the jurisdiction thereof"

thereof... not therein.

Therein would be within a place, i.e. on U.S. sovereign land.

Thereof; however, is OF or CONSERNING and, in this case, not referring to physical presence; rather, it is of or concerning being subject to jurisdiction by virtue of being a "persons born or naturalized in the United States".

Being a citizen of a county puts you under that countries' jurisdiction. This is true even if you not within that countries boarder or areas of control. This is separate and completely different than being subject to a countries laws due to physical presence.

[nicmart]

Much like the movement, Barnett's libertarianism has evaporated.

[Armchair]

Let's throw a second question in there...birth tourism.

Approximately 36,000 people come to the US per year for the explicit purpose of giving birth to children (so they can get US Citizenship), then returning to their home countries. Major countries are Russia and China that engage in it.

Lets say 20 years from now, there are 150,000 US "Citizens" living in China whose sole connection to the US is that their Chinese mom visited there when she was pregnant, gave birth, then went home with the son/daughter. These individuals are Chinese by allegiance...but US Citizens by "birth." China then sends 100,000 over to a swing state in the 2044 election to vote, swinging the election.

What then?

[Frank Drackman]

What do you mean what then? they're Boner-Fide US Citizens!

[Sarcastr0]

You get that number from CIS?

IIRC it's been established they made that number up.

A solution in search of a problem sure lets you push any policy you want!
What if, say 20 years from now, Armchair's posting 150,000 unsourced numbers a day.
What then?

[Dan Schiavetta]

They would not be Chinese by allegiance. Children born here think of themselves as Americans. They learn English and though they might speak it with an accent and still speak with their parents in their ancestral language, this does not carry on into adulthood. If you knew any such people (I know a lot of them) you would know this.

Your underlying assumption is that Chinese are automatons, and their children are pod people (or at least "inscrutable"). This is an old stereotype about Asians. It is not true.

[Brett Bellmore]

You didn't even bother looking at the hypothetical, did you? In the scenario described, the children were raised entirely in China, and then were just sent back en masse once they were adults.

How exactly does being born here, and then subsequently raised somewhere else, result in somebody thinking of themselves as American?

[Dan Schiavetta]

OK I misread it. But it's a strange hypothetical, again relying on the stereotype of Asians as "inscrutable", a "yellow peril" with nefarious designs. How many really fit that situation?

[Sarcastr0]

If the problem is fan fiction, then the solution should also stay in fiction-land.

[Stephen Lathrop]

Schiavetta — Do not be silly with categorical assertions. What happens, happens.

What you say does not happen did in fact happen in the case of my own grandfather. He was born to "Austrian," (Czech, by later reckoning) immigrants in Minnesota. Living principally in New Prague, but later in Minneapolis, my grandfather spoke Czech at home during his entire life.

My mother began school in New Prague knowing no English. By the time I was born, my mother's only accent was, "Minnesota nice," and I was astounded to learn when I was 19 this bit of family linguistic lore.

I had supposed my grandfather, whom I met on only 3 occasions, must have been an immigrant himself. His Eastern European accent remained impenetrable to strangers until he died. My mother disabused me of that supposition by digging out my grandfather's birth certificate.

Your supposition is thus accurate only as to my mother, who was in fact a late-arriving child of natural born American citizens. Given the plethora of durably ethnic American communities which began springing up before the Civil War, I doubt my own family's experience is particularly rare.

Not long ago—but more than a century since my mother's birth—I Googled New Prague, to discover if it still featured polka bands. Yup.

[Dan Schiavetta]

This country used to have such enclaves, where one might walk through town and scarcely know you're in the U.S. except for the cars. Their only interactions were with their fellow immigrant families so English was never a priority. It's a lot less likely (and less feasible) now, chiefly because of the internet, and was never all that true in cities.

[David Nieporent]

It was true in cities too. "Little Italy," "Chinatown," etc.: these weren't tourism board marketing labels, but descriptions of the actual neighborhoods. The signs were in those languages, foreign language newspapers dominated, etc.

[Dan Schiavetta]

Yes but the denizens of those enclaves did venture out past those few blocks. In small isolated towns in the Midwest it was a different story.

[shawn_dude]

Oh hey! Another Bohemian!

My great great grandparents emigrated from Bohemia ("Austria") and first settled in New York before relocating to California.

[ducksalad]

I can live with the risk of your scenario.

- 100,000 is a drop in the bucket compared to the 10's of millions of US voters born to US citizens who are actively against the constitution and vote for people who undermine it.
- 100,000 is in the noise when it comes to measuring the will of the people. It's in the same range as the presence or absence of a moderate winter storm or a social media get-out-the-vote campaign.
- It's not like the election would swing from a beleaguered patriot to a foreign dictator nobody wanted. It would most likely swing between two major party nominees already supported by huge and almost equal swaths of native born Americans.
- As Schiavetta pointed out, the whole bedwetting scenario rests on a bigoted and false assumption that pisses on the people who stood up at Tianenmen Square.

[Frank Drackman]

If the rule you followed led you to this, of what use was the rule??
Now call it! You have to call it, I can't call it for you. (HT A. Chigurh)

Frank

[hobie]

Do you have any idea how crazy you are?

[Frank Drackman]

You should admit the reality of your situation, there would be more dignity in it

[Commenter_XY]

SCOTUS will rule on the question, sooner or later. And then we will have our answer.

[Jason Cavanaugh]

1) SCOTUS has already ruled on the issue more than 120 years ago.
2) We therefore already have our answer.
3) Their answer is supported by the plain English that everyone except people like you comprehend.

You may now carry on with your ignorance.

[santamonica811]

Jason,
Serious question: Would you be shocked if Alito and Thomas ruled in favor of Trump, were this case to go to SCOTUS? I'm ashamed to admit that it wouldn't shock me. Of course it should be a 9-0 decision, but I think it's even money that those two would rule for Trump. But, as long as there is no circuit split (and I don't anticipate that...the whorish of Trump judges--other than one unnamed Florida jurist--won't be ruling against birthright citizenship), I expect that the Sup. Ct will just deny cert.

[Jason Cavanaugh]

Shocked? Hah. I would expect those two clowns to rule in his favor. Neither of them have any guiding principles.

I've said it before but you may not have seen it: thank you for being a sane Republican still. Lesser individuals have thrown their hats all-in with the MAGA lawlessness because they taste power. We're going to need people like you and your former party when it comes time to take out the trash and restore Constitutional order.

[Frank Drackman]

That’s what Plessy and Ferguson thought

[not guilty]

"SCOTUS will rule on the question, sooner or later. And then we will have our answer."

In cases involving deportation of parents who were unlawfully present in the United States when the mother gave birth, SCOTUS has repeatedly recognized the American citizenship of a child born in the United States to such parents.

In United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957), Justice Harlan wrote for the Court:

This is a habeas corpus proceeding to test the validity of an order of the Board of Immigration Appeals denying petitioners' request for suspension of deportation.

Petitioners are husband and wife, both aliens. Prior to 1951 both worked as seamen on foreign vessels. In July 1951 the wife lawfully entered the United States as a crew member of a ship in a United States port. Being pregnant, she sought medical advice; subsequently she decided in the interest of her health to stay ashore. A month later, on the next occasion his ship arrived in the United States, her husband joined her; he also failed to leave on the expiration of his limited lawful stay. In November 1951 their child was born; the child is, of course, an American citizen by birth.

Id., at 73 (footnote omitted). I am quite confident that no one held a gun to Justice Harlan's head to persuade him to include that last detail.

In January 1952 petitioners voluntarily disclosed their illegal presence to the Immigration Service and applied for suspension of deportation under § 19(c) of the Immigration Act of 1917, which provides, in part:

"In the case of any alien . . . who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may . . . suspend deportation of such alien if he is not ineligible for naturalization . . . if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien . . . ."

Id., at 73-74 (footnote omitted, paragraph break added, emphasis added, ellipses in original). As to the issue of suspension of deportation, the Hearing Officer, while finding petitioners eligible for such relief, denied the request. The petitioners appealed this denial to the Board of Immigration Appeals. Id., at 74-75. The Board's findings included the following excerpts:

"It is obvious that the American citizen infant child is dependent upon the alien parents for economic support, care and maintenance. . . .

"As stated above, we have, in the instant case, a family consisting of two alien parents illegally residing in the United States and one American citizen child, age about two and one-half years. . . .

"Notwithstanding the fact that . . . the deportation of these respondents would result in a serious economic detriment to an American citizen infant child, the granting or withholding of maximum discretionary relief depends on the factors and merits in each individual case, and is a matter of administrative discretion. . . .

Id., at 75-76 (emphasis added). The petitioners moved the Board for reconsideration. On May 5, 1954, the Board denied the motion, stating inter alia:

We indicated in our previous order that the deportation of the respondents would result in a serious economic detriment to their citizen minor child, and we do not question that the respondents have established the statutory requirements for suspension of deportation . . . .

Id., at 76-77 (emphasis added). Taken into custody for deportation, the parents instituted a federal habeas corpus proceeding, alleging that the Board abused its discretion in denying their application for suspension of deportation. The District Court dismissed the writ, and a divided panel of the Court of Appeals affirmed. SCOTUS granted certiorari. Id., at 77. Justice Harlan wrote for the majority:

We do not think that there was error in these proceedings. It is clear from the record that the Board applied the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation. The Board found that petitioners met these standards and were eligible for relief. But the statute does not contemplate that all aliens who meet the minimum legal standards will be granted suspension. Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites have been met.

Id., at 77. An essential component of "the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation" was the citizenship of the petitioners' child. The language quoted in the preceding paragraph accordingly represents the Supreme Court's express approval of the Board's findings that the child born in the United States to deportable alien parents was indeed a United States citizen. Justice Douglas, joined in dissent by Justice Black, was even more emphatic as to the child's citizenship:

This case, on its face, seems to be an instance of a deportation which would "result in serious economic detriment to a citizen," as those words are used in § 19(c) of the Immigration Act of 1917.

The citizen is a five-year-old boy who was born here and who, therefore, is entitled to all the rights, privileges, and immunities which the Fourteenth Amendment bestows on every citizen.

Id., at 79.

To the same effect is INS v. Rios-Pineda, 471 U.S. 444 (1985), applying a later version of the statute authorizing suspension of deportation. Justice White wrote for a unanimous Court:

Section 244(a)(1) of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended 8 U.S.C. § 1254(A)(1), allows the Attorney General to suspend the deportation of an alien. To warrant such action, the alien must have been physically present in the United States for a continuous period of at least seven years, be of good moral character, and demonstrate that deportation would result in extreme hardship to the alien, or the alien's "spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." Ibid. Even if these prerequisites are satisfied, it remains in the discretion of the Attorney General to suspend, or refuse to suspend, deportation. . . .

Respondents, a married couple, are natives and citizens of Mexico. Respondent husband illegally entered the United States in 1972. Apprehended, he returned to Mexico in early 1974 under threat of deportation. Two months later, he and respondent wife paid a professional smuggler $450 to transport them into this country, entering the United States without inspection through the smuggler's efforts. Respondent husband was again apprehended by INS agents in 1978. At his request, he was granted permission to return voluntarily to Mexico in lieu of deportation. He was also granted two subsequent extensions of time to depart, but he ultimately declined to leave as promised. INS then instituted deportation proceedings against both respondents. By that time, respondent wife had given birth to a child, who, born in the United States, was a citizen of this country. A deportation hearing was held in December 1978. Respondents conceded illegal entry, conceded deportability, but requested suspension of deportation. The Immigration Judge, ruling that respondents were ineligible for suspension because they had not satisfied the requirement of seven years' continuous physical presence, ordered their deportation. Respondents appealed the order to the BIA, asserting a variety of arguments to establish that the deportation violated their rights or the rights of their child. The BIA rejected these arguments and dismissed the appeal.

In July 1980, respondents filed a petition for review in the Court of Appeals, which automatically stayed their deportation pursuant to 8 U.S.C. 1105a(a)(3). . . . During the pendency of the appeals, respondent wife gave birth to a second citizen child.

Id., at 445-447 (emphasis added).

In each of these deportation cases, the parents were indisputably deportable for being present unlawfully. Under the relevant statutes, their children being United States citizens was the sine qua non of their ability to request suspension of the deportation orders. As such, that citizenship was a jurisdictional fact -- essential to the parents' Article III standing to seek relief in the federal courts from the deportation orders.

[DaveM]

The author misstates his opponent's position, and then diligently wacks away at the mannequin. There must be a term for that kind of argument.

The author says the opponent's position is, "(1) jurisdiction depends on obedience (as a condition of a theoretical social compact), and (2) the disobedience of a parent can be imputed to a child."

But that completely misstates their position. The opposition claims that jurisdiction over a minor child depends on the allegiance of his or her parents, not their obedience.

Allegiance is simply not the same thing at all as obedience. Every time I get in my car and drive over the posted speed limit I am being disobedient. But I don't expect ICE to be pulling me over and deporting me for insurrection or treason against my country.

Bah! Give us at least a fair counter-argument, please, not these straw men.

[Dan Schiavetta]

I find it odd that people who go through a lot of hardship to escape their native country are assumed to still have allegiance to it.

[Mr. Bumble]

Explain the highway blocking protestors burning the American flag and waving the Mexican flag.

[Brett Bellmore]

As a legal matter, anyway.

I've considered moving to the Philippines when I retire, for the lower cost of living. (And scuba, of course!) Unless I went to the considerable trouble of becoming a Philippine citizen, and officially renouncing my American citizenship, (NOT an easy process!) I'd remain an American citizen.

Similarly, a Honduran citizen can go to all the trouble they want in moving to the US, and unless that trouble includes becoming legally naturalized, they remain a Honduran citizen, not a US citizen. And if the trouble doesn't include legally immigrating, they're not even going to be legally resident in the country. Kind of like a squatter isn't legally a homeowner...

Legal allegiance to a country is not something you can just grab of your own accord, it has to be given.

[Dan Schiavetta]

Not my experience.

[Brett Bellmore]

Ok, then: Sneak into a country against their law, and see if they'll admit that you're a citizen.

[ducksalad]

Remember that the topic here isn't citizenship, it's allegiance.

Both the Philippines and Honduras would require you to obey their laws; and more importantly, the fact that you'd entered illegally would most likely reduce any exemptions to their laws they'd normally make for American tourists with a proper visa.

And since you mentioned Honduras it's worth mentioning that if you and your wife snuck into Honduras and had a child, yes, that child would be entitled to Honduran citizenship. That's true in most Western Hemisphere countries, which were founded at least nominally on ideas of liberty rather than ethnic allegiance.

[Sarcastr0]

Maybe the loyalties of retired American engineer are not that comparable to a Honduran illegal immigrant.

Not that the Constitutional analysis should be engaging in that kind of speculative inquiry, but issue of birthright citizenship on here has always quickly diverted to nativist/nationalist vibes.

[hobie]

It's almost as if that brown, sombrero-wearing collection of cells is a whole and separate human being, deserving protection of the state

[Frank Drackman]

Remember how there was a “Right to Privacy” hidden in the Penumbras of the Constitution?
Until there wasn’t

Frank

[windycityattorney]

Point taken; but the key distinction here is the 'penumbras' which were manifested out of some general intent of the various amendments whereas here; we have the plain language. There is no reason to resort to penumbras.

Or put differently, the people opposing birthright citizenship are the ones creating penumbras out of 'subject to the jurisdiction' to reach a desired result that conflicts with the plain language.

Its not a particularly persuasive attempt; all the more egregious that this is occurring in the context of an executive order. Not that it would matter if Congress passed a law mirroring the language of the order; as either or each would be subject to the constitution and subservient to it. But at least the attempt to amend the constitution without actually going through the steps to actually amend it would be less egregious/authoritarian in nature.

[Roger S]

No, those arguing against birthright citizenship rely on the plain language, and documents at the time. Nobody wanted anchor babies until a century later.

Scotus used to be much more willing to dictate policy based on its own leftist preferences.

[David Nieporent]

Scotus used to be much more willing to dictate policy based on its own leftist preferences.

The 1890s Supreme Court justices were well known for their Trotskyite leanings.

[Frank Drackman]

Did you know Trotsky was born in 1879? (I didn't) so it's theoretically possible that 1890's Surpremes may have had the same leanings as Leon.
OK, you've got a point, we used to have a Surpreme Court that would OK a Black Teenager getting Executed twice in the Electric Chair for a murder he committed at age 15, (Unsuccessfully Electrocuted at age 17, and umm, "Successfully"(he would probably disagree) at 18)