Does the 14th Amendment mandate Birthright citizenship?

Trump is right about birthright citizenship pic.twitter.com/Az5QwvvXGn

— Tom Woods (@ThomasEWoods) February 18, 2025

Many people assume that the 14th Amendment's citizenship clause requires so called birthright citizenship, such that the children of illegal aliens must automatically become US citizens.  Donald Trump recently issued an executive order clarifying the meaning of the 14th Amendment's citizenship clause, arguing that it does not mandate birthright citizenship, and he happens to be absolutely right.  Birthright citizenship is a terrible idea that only about 30 of the world's nearly 200 countries observe.  But in this video, I'm not focused on whether it's a good or bad thing, I'm looking instead at whether it really is true that the 14th Amendment mandates it.  

Trump is correct to say in his executive order that,

in no formal way that could bind anyone has "The 14th Amendment ever been interpreted to extend citizenship universally to everyone born in the United States." 

So I'm going to give you a quick run through of the issue.  First, I recommend a book called Citizenship Without Consent: Illegal Aliens in the American Polity, written by Peter Schuck and Rogers M. Smith, Yale University Press, 1985.  In that book, they make a compelling case that the 14th Amendment does not mandate Birthright citizenship.  Schuck and Smith begin a summer 2018 article in National Affairs this way,

If an unauthorized alien gives birth to a child on American soil, is a child automatically a United States citizen?

Americans have long assumed that the answer is yes, that the child is a Birthright citizen regardless of the parent's legal status and that such citizenship is required and guaranteed by the Constitution. 

But a closer examination of the matter suggests that this answer is actually incorrect, and that Birthright citizenship for the children of immigrants here illegally is better understood as a matter for Congress and the American people to resolve.

What makes their conclusion especially interesting is that Chuck and Smith describe themselves as scholars who,

"strongly favor even more legal immigration than the U.S. now accepts, and a generous amnesty for those now here illegally.

So even though their conclusion runs counter to their personal political beliefs and they are not Trump sympathizers in the least, they contend that the evidence is so strong against Birthright citizenship that scholarly honesty compels them to say so.  

The fact that many opponents of Birthright citizenship for the children of unauthorized parents harbor anti-immigrant views does not mean that their bottom line position is wrong.

They argue that because the Constitution does not mandate Birthright citizenship, the matter may be regulated by Congressional statute instead, which is precisely what was done for Native Americans.

Let's examine the details of the argument against the birthright citizenship interpretation of the 14th Amendment.  The 14th Amendment to the Constitution begins,

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.

What was the purpose of this clause?  As people agreed at the time, it involved the question of the Freedmen who, according to the 1857 Dred Scott Decision, we're not citizens.  A constitutional amendment would place the question beyond the reach of any statute but they couldn't just say that everyone born in the United States was a citizen because that would include Indians and their allegiance belong not to the United States but to the tribes of which they were members.  Hence the addition of the phrase, "subject to the jurisdiction thereof."  Black Americans born here were obviously subject to US jurisdiction, while Indians weren't.  So this clause made the precise distinction that the situation called for.  You'll notice that the reason Indians were excluded is that they had an allegiance to a foreign power, namely their tribal governments.  Illegal aliens would therefore be excluded by the same language and for the same reason.

That phrase, "subject to the jurisdiction thereof," is therefore key to understanding the clause.  The argument of Trump's legal supporters is that illegal immigrants are subject to a foreign sovereignty are therefore not subject to us jurisdiction and thus the citizenship clause above does not apply to them.  Trump's opponents on the other hand are trying to argue that the "subject to the jurisdiction thereof" wording does not exclude illegal aliens, and that it excludes only children who may be born to foreign diplomats who reside in the United States but are citizens of foreign countries.  But children born to parents who are diplomats to the United States constitute such a vanishingly small number of people that it is hard to credit the idea that they would have received such prominent positioning in a Constitutional Amendment.  In fact, the main argument in favor of Birthright citizenship these days is that "but . . . we've had it for such a long time." But of course whether something "has been done for a long time" has nothing to do with weather the practice is mandated by the Constitution or not.  What was meant by "subject to the jurisdiction thereof" in the 14th Amendment was that in order for you to be an American citizen you had to be subject to no other sovereign.  Congressman John Bingham, sometimes called the father of the 14th Amendment itself, held that the meaning of this clause was that,

Every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.

So there it is parents not owing Allegiance to any foreign sovereignty but illegal immigrants are subject to a foreign power namely to the government where they legally reside and their children are there for excluded from the citizenship Clause of the 14th Amendment Senator Jacob Howard who introduced the 14th Amendment various provisions on the senate floor on May 23rd 1866, said, he regarded the citizenship class as,

Simply declaratory of what I regard as the law of the land already declaratory of the law as it already existed.

This is a reference to the Civil Rights Act of 1866, which stated that,

All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens in the United States.  

I've heard some misinformed Libertarians argue that illegal immigrants are in fact subject to us jurisdiction after all because if they commit a crime they can get arrested by us authorities so that proves their subject to us jurisdiction they triumphantly argue and therefore the 14th Amendment's citizenship clause does indeed apply to their children born here.  But that would make everybody who visits the United States as a tourist into a U.S. citizen, because any tourist can also get arrested here for committing a crime.  

7:43.  The meaning of the clause which we can ascertain from the statements of its drafters, as well as from the Civil Rights Act of 1866, is that a person must be subject to the complete jurisdiction of the US in order to be a US citizen.  So if a tourist comes to the United States from Iceland, that person has to obey our laws, including, for example, our traffic laws regarding roundabouts, which are different here than they are in Iceland.  If he violates these laws, he will find himself up against U.S. law enforcement.  But because he is not fully subject to us jurisdiction, he cannot be punished for treason and he can't be drafted into the US Military. So such are not under the complete jurisdiction of the United States.  

8:31.  Thomas Cooley in his 1880 treatise The Great Principles of Constitutional Law in the United States of America, says, that 

"Subject to the jurisdiction" of the United States "meant that full and complete jurisdiction to which citizens generally are subject and not any qualified or partial jurisdiction, such as may consist with allegiance to some other government.  

Likewise, in the 1884 case of "Elk v. Wilkins," the Supreme Court said that,

"Subject to the jurisdiction thereof" required that someone be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate Allegiance.

We also read in that decision, 

Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent, power) although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof" within the meaning of the first section of the 14th Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public Ministers of foreign Nations.

Did you catch that in noting that Indians were excluded from automatic citizenship the courts said they were no more citizens then were the children of subjects of any foreign government born within the domain of that government in other words it was obvious to the court that of course the children of people who were subjects of foreign governments weren't US citizens .  The first time the Supreme Court mention this citizenship clause of the 14th Amendment though was 12 years earlier in 1872 Slaughterhouse cases just four years after the amendment was ratified. And just 4 years after the Amendment's ratification, the court said that,

The phrase "subject to its jurisdiction" was intended to exclude from its operation children of ministers, councils, and citizens or subjects of foreign States born within the United States. 

But in the 1898 case, United States v. Wong Kim Ark, decided some 30 years after the ratification of the 14th Amendment, Justice Horace Gray in a 5-4 decision suddenly adopted the opposite view and by assertion.  This is the case that Birthright citizenship supporters point to rather than the cases that were chronologically closer to the actual passage of the 14th Amendment.  But this isn't the first time and it won't be the last that the court has been wrong.  For one thing, we read in that case that when the Constitution is unclear, Americans have to rely upon the common law inherited from England.  According to the common law Doctrine of "Use solely," everyone born on the king soil owes allegiance to the king and perpetuity and thus Birthright citizenship is the rule in America well that's pretty weak we broke from that way of thinking in the Declaration of Independence.  Furthermore, legal scholar John Eastman writes,

Wong Kim Ark involved a child born to parents who were permanently domiciled in the United States not those who were only here temporarily or illegally.

Indeed, honest Scholars will be forced to acknowledge that the Supreme Court has never held that the children of illegal immigrants or even temporary lawful visitors are constitutionally entitled to automatic citizenship merely by virtue of their birth in the United States.  

Most people aren't even aware that there is a constitutional argument against birth rights citizenship that's because most of us were victims of educational malpractice in fact there are plenty of other controversial issues about which we've heard only the approved version but real American history, the politically incorrect kind, that hasn't been sanitized or falsified by wackos, is much more interesting and that's what I specialize in at Woodshistory.com, the history they kept from you.  Learn from me over there for free.  That's Woodshistory.com.