Simply put, the Supreme Court’s recent ruling striking down President Donald Trump’s birthright citizenship ban was both legally and historically wrong, as well as a misguided interpretation of the 14th Amendment.
Since Trump’s inauguration, he has issued a slew of executive orders but none more controversial than banning the birthright citizenship of illegal immigrants. In essence, the president has argued that those born to illegal immigrants are not “citizens” of the United States, according to the 14th Amendment.
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To date, two federal judges have ruled that Trump’s executive order is unconstitutional, holding that the clear language of the 14th Amendment confers citizenship to anyone physically born in the U.S. In fact, it is commonly believed that under the citizenship clause of the 14th Amendment, mere birth on U.S. soil is sufficient to obtain U.S. citizenship. However strong this belief is perceived, it is mistaken not only within the text of the citizenship clause but also incongruent with the political theory of the American founding.
As a practicing lawyer and historian, in my view, Trump’s executive order banning birthright citizenship should have been upheld by the Supreme Court. The 14th Amendment confers citizenship on any person who is both (1) “born or naturalized in the United States” and (2) “subject to the jurisdiction thereof.” Both requirements invoke specialized terms of art. The “jurisdiction” wording in the second clause (the jurisdiction clause) is the subject of interpretation. That clause was written and invokes the historic doctrine of “gigantea,” meaning the person must owe direct and exclusive allegiance to the sovereign nation, which must consent to the person’s presence. Notably, the jurisdiction clause does not say that the person must be subject to the laws of the U.S., but rather subject to its “jurisdiction.”
This distinction is monumental. Thus, it should come as no surprise that the meaning of that term in an amendment written nearly 160 years ago could be misinterpreted. As one circuit judge has held, “the evident meaning of the words ‘subject to the jurisdiction thereof’ is, not merely subject in some degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” The historical record clearly confirms that the 14th Amendment does not confer citizenship on the children of immigrants unlawfully present in the U.S. For example, there is widespread agreement that the jurisdiction clause means that children born in the U.S. to ambassadors or invading soldiers would not receive citizenship under the 14th Amendment — this is because they do not owe total allegiance to the U.S. They remain citizens of their home countries, to whom they owe at least divided allegiance. Allegiance is a reciprocal relationship. The person must be present with the consent of the sovereign, yet illegal immigrants and their children are present in the U.S. without consent.
The senators who drafted the jurisdiction clause stated that children of “immigrants” or others “owing allegiance to anybody else” would not receive citizenship. That understanding extended for decades after the ratification of the 14th Amendment. The history of the jurisdiction clause begins with the Civil Rights Act of 1866, which stated: “[A]l persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Sen. John Bingham, a principal author of the future 14th Amendment, explained that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty” would be a citizen. This invoked the concept of total allegiance to the U.S. — a concept defeated if the parents (and thus their child) owed any allegiance to their home country.
One of the most distinguished jurists, Judge Richard Posner, has argued that the interpretation of absolute birthright citizenship “makes no sense,” and he “doubt[ed]” it was correct even under existing caselaw because many immigrants present in the United States owe no allegiance to it.” He noted that hundreds of thousands of foreign nationals have come to the U.S. solely to give birth, without the slightest hint of owing allegiance to the U.S. “[T]here is a huge and growing industry in Asia that arranges tourist visas for pregnant women so they can fly to the United States and give birth to an American. Obviously, this was not the intent of the 14th Amendment; it makes a mockery of citizenship.”
THE DEMOGRAPHIC MATH OF BIRTHRIGHT CITIZENSHIP
The effort by the Supreme Court to read the 14th Amendment more broadly as interpreting the citizenship clause to confer birthright citizenship on the children of those not subject to the full and sovereign jurisdiction of the U.S. not only ignores the text, history, and political theory of the citizenship clause but also permits courts to intrude upon a plenary power assigned to Congress itself. It is time for the courts, and for the political branches as well, to have a clear and unequivocal interpretation of the citizenship clause, restoring to the constitutional mandate what its drafters actually intended: that only a complete jurisdiction, of the kind that brings exclusive allegiance to the U.S., is sufficient to qualify for the grant of citizenship.
Thus, in my view, Trump’s executive order is both constitutional and historically accurate. The Supreme Court was simply wrong.
William G. Hyland Jr. is a practicing attorney in Florida and the award-nominated author of four widely praised historical biographies, including George Mason: The founding father who gave us the bill of rights (Regnery Books [2019]).
