Some considerations regarding birthright citizenship.
@Mark_McEathron on X:
A little history on the 14th Amendment and the “birthright citizenship” clause.
I’m reminded that a lot of people do not know the process involved in bringing an amendment from concept to to ratification and law, or why that process matters.
Jacob Howard (Senate) and John Bingham (House) were the two guys that drafted and presented the proposed amendment to Congress.
Once submitted, there is debate. Members of Congress express concerns, propose changes, and so on. These debates are recorded for posterity to look back upon to better understand what the legislation is intended to do.
Then, once Congress passes it and presents it to the States, there is the Ratification Process in which each State can debate and present their concerns.
This leaves us with a tremendous record of why specific words and phrases were chosen and what the intent was. It informs the voters on exactly what the law means, straight from the framers of it, so that there is no confusion.
This is why originalism is preferred to textualism. The law can only mean what it meant when it was adopted. Altering the meaning and intent of the law is altering the law itself and subverts the legislative process. Courts do not have that power. Sadly, that hasn’t stopped courts from usurping that power.
In the Ratification process, the very questions being argued before SCOTUS today, were addressed unequivocally.
When asked if the amendment applies to foreigners, the framers themselves had this to say, explicitly:
Howard said:
“This amendment… declares that all persons born in the United States, and subject to the jurisdiction thereof, are citizens…”
Then he immediately defines the limitation:
“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers…”
That is the understanding of the law as it was ratified. That is what We The People voted to enact.
Furthermore, they went even deeper on what “subject to the jurisdiction” explicitly meant:
Howard described jurisdiction as:
“Full and complete jurisdiction… not owing allegiance to anybody else.”
Allegiance. That was the crux of the debate and understanding.
For those born here from citizens of another Nation:
“They are subject to the jurisdiction of the United States in a certain sense, but not in the full and complete sense.” – Howard
Full and complete.
That’s what makes someone subject to the jurisdiction.
“Subject to the jurisdiction thereof” means
“not owing allegiance to anybody else.” – Senator Lyman Trumbull at the ratification debates
They explicitly rejected absolute jus soli (citizenship by soil alone).
In the case of United States v. Wong Kim Ark., the court applied the English Common law standard of jus soli, flagarently against Congress’s explicit rejection of it during ratification. The court rejected originalism in favor of textualism. As a result, this Nation ended up with a very different legal structure than the Constitution created.
The bottom line is that the 14th Amendment did not establish birthright citizenship. It ensured that due process and the rights and privileges in the States are preserved.
If you listen to the oral arguments before the court today, I expect that you’ll see this argument put forth.
Allegiance, not presence, determines citizenship.
Stella's Place 
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Another point, from Mike Bski on X:
Congressman Goldman.
Let us start with the factual claim at the center of your post, because it is wrong in a way that matters.
You said birthright citizenship for the children of illegal aliens “has been the law of the land for more than 125 years.” That is not accurate, and I suspect you have enough legal training to know it.
The Supreme Court has NEVER ruled that children of illegal aliens are automatically citizens. Not once. Not in 125 years. Not ever.
The 1898 Wong Kim Ark case — the one your colleagues keep waving around — involved parents who were LEGAL PERMANENT RESIDENTS with established domicile in San Francisco. The word “domicile” appears over twenty times in that opinion. The ruling was explicitly limited to the facts of that case. The Court itself quoted Chief Justice Marshall warning that general expressions in opinions “ought not to control the judgment in a subsequent case when the very point is presented for decision.” That point has never been presented. Until now.
Here is your actual “125 years of law”: at some point, the State Department began issuing citizenship documents to children of illegal aliens as an administrative practice. No statute authorized it. No Supreme Court ruling required it. Congress — the body you serve in — never passed a law doing this. It became bureaucratic habit, then assumed policy, then treated as constitutional mandate. The Constitution does not work that way, and a man with a law degree should know that.
Here is the test that shatters the “125 years” claim: Native Americans. Born on this continent thousands of years before America existed. Under the reading you are defending, they were automatically citizens the moment the 14th Amendment passed in 1868. But they were NOT. The Supreme Court confirmed this in ELK v. WILKINS (1884). Congress had to pass a SEPARATE STATUTE in 1924 — the Indian Citizenship Act — to grant them citizenship. That is 56 years AFTER ratification. If birthright citizenship were truly automatic for everyone born here, that statute was pointless. Congress does not pass pointless statutes.
The “125 years of settled law” you are defending was apparently so settled that Congress had to legislate around it for Native Americans in 1924. Do the math.
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Meanwhile, here in Canada, our insane federal government has made it so that if you are a Canadian citizen living in another country and you have kids, your kids automatically have Canadian citizenship.
As will their kids.
And their kids’ kids.
With no limitation. You could have generation of Canadian “citizens” that have never lived in Canada, but can vote and get all the perks of citizenship, with none of the responsibilities.
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Meanwhile, here in Canada, our insane federal government has made it so that if you are a Canadian citizen living in another country and you have kids, your kids automatically have Canadian citizenship.
As will their kids.
And their kids’ kids.
With no limitation. You could have generation of Canadian “citizens” that have never lived in Canada, but can vote and get all the perks of citizenship, with none of the responsibilities.
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