SCOTUS Should Severely Restrict “Territorial” Birthright Citizenship to Protect US Sovereignty

All persons born or naturalized in the United States, and subject to the jurisdiction thereof [boldface added], are citizens of the United States and the State wherein they reside.

                                    14^th Amendment to the US Constitution

As legal giant Judge Richard Posner said in a concurring opinion 20 years ago, “This rule [that birth on U.S. soil confers citizenship], … makes no sense. … The purpose of the rule was to grant citizenship to recently freed slaves.”

Ann Coulter (University of Michigan J.D., syndicated columnist), 1/31/25

Democrats act as if the right to run across the border when you’re 81 months pregnant, give birth … and immediately start collecting welfare was exactly what our forebears had in mind, a sacred constitutional right, as old as the 14^th Amendment itself. … [In fact, the] 14^th Amendment was added after the Civil War to … stop sleazy Southern states from denying citizenship to newly freed slaves … This alleged right derives only from a footnote slyly slipped into a Supreme Court opinion by Justice Brennan in 1982 when no one was looking … [Since] America was not the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it’s amazing the drafters even considered the amendment’s effect on children of aliens.

Ann Coulter, 8/9/10

Since Won Kim Ark, territorial birthright citizenship has been the de facto law of the land (and later reinforced by Justice Brennan’s dicta in a footnote 10 in Plyer v. Doe 457 U.S. 202 [1982], where he declared that “no plausible distinction with respect to 14^th Amendment ‘jurisdiction’ can be drawn between resident [legal and illegal] aliens”).

Ben Crenshaw (Visiting Assistant Professor at the University of Mississippi), 8/8/24

[I]n 1884, the Supreme Court handed down Elk v. Wilkins [declaring] that parents must not merely be “subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and not subject to any foreign power [boldface added]”.     Elk v. Wilkins, 112 U.S. 94 (1884)

When the Cherokee Nation went to the Supreme Court in 1831 to challenge Georgia’s encroachment on its sovereignty, it “insisted that individually they are aliens,” rather than citizens of the United States.

                                                Cherokee Nation v. Georgia, 30 U.S. 1 (1831)

The New York Times Praises Democrats’ Immigration Policies For ‘Reshaping the Electorate’ … “The surge in naturalization efficiency isn’t just about clearing backlogs; it’s potentially reshaping the electorate, merely months before a pivotal election.  Every citizenship application could be a vote that decides Senate seats or even the presidency.” While the article doesn’t explicitly state whether the aforementioned individuals being processed came to the US legally or illegally, the article acknowledges that … “there has long been partisan disagreement over how to tackle illegal immigration and overhaul the nation’s immigration laws.”

                                                The Federalist, 8/13/24

The U.S. Congress, the Supreme Court, and the American people should seek an immediate end to territorial birthright citizenship [granted to people born on US soil]. This practice is anti-American and anti-constitutional, a national dissolvent, a way to dilute American citizenship, destroy constitutional fidelity and allegiance and upend the rule of law. It marks the antithesis of the American founding, early immigration and naturalization law, and the original intent [boldface added] behind the Citizenship Clause of the 14^th Amendment. At the same time, Americans should seek the true … purpose of political birthright citizenship as a way to restore a historic and patriotic understanding of American citizenship and safeguard this country from internal corruption and eventual collapse.

Ben R. Crenshaw (Visiting Assistant Professor (Politics) at the Declaration of Independence Center, University of Mississippi), 8/8/24

            Several decades ago, while living in Asia, a Chinese national student of mine who was pregnant at the time, told me that she was thinking of flying to New York to have her baby so that he would grow up with all the advantages of both US and Chinese citizenship.  In the end she did not do this.  Although I liked her a great deal, I was struck by the sense of entitlement displayed, even by citizens of China, who know that the United States can be so easily played in this way.  She had this sense of entitlement because a particular interpretation of the 14^th Amendment to the US Constitution, a “dictate” deceptively sneaked into a footnote to an opinion by comrade Brennan, has become accepted all over the globe.

            However, the original intent of the 14^th Amendment was not to give foreigners or criminals, sometimes from countries hostile to America, to sneak across our borders to have a baby so that they can prey on US citizens or influence US politics.   Even the 14^th Amendment makes exceptions to birthright citizenship.  It did not originally make Native Americans citizens, although that was changed in The Indian Citizenship Act of 1924 because Native Americans had their own languages and cultures and did not want to assimilate to the new culture and laws.  Imagine that! Even today, it does not grant citizenship to the children of foreign diplomats or ministers or to children born to foreign armies residing in the US because these are not solely subject to the jurisdiction of the United States.

            Although the Left, in the service of their never-ending search for new voters, would like one to believe that there are no limits on “birthright citizenship,” these have existed from the beginning.  But here, rationally, does one put them?

            The language of the 14^th Amendment was borrowed from 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 … are citizens of the United States.”  Unfortunately, the child of my Chinese friend is subject to a foreign power: China.  And criminals who sneak in from Central America are subject to the foreign power of their home country.  If proponents of “birthright citizenship” believe that all that hostile foreign governments or murderous foreign criminal gangs have to do to create at anti-American political “fifth column” within the US is to sneak enough people into the country to have babies, they should say so.  Besides, there is no need for that.  They already have that in the Democrat Party. 

However, as one of the “Reconstruction Amendments”, the original intent of the 14^th Amendment was to protect to rights of freed former black slaves, not allow my Chinese friend to fly to New York to give her child US citizenship.  Nor was it designed to allow central American criminal gangs a resident perch from which to prey on American citizens.  Even in current academic articles, a mere footnote (like Brennan’s) is not accorded the same weight as the text proper. 

There is one additional consideration not contemplated by the drafters of the 14^th Amendment against territorial birthright citizenship—that the US would someday have a “president” so cynical and corrupt that he would throw open the borders of the country in order, as the New York Times puts it, to “reshape the electorate” for his Party’s own selfish political purposes.  The best new argument against the alleged right to territorial birthright citizenship is Joe Biden and today’s unhinged Democrat Party. 

No matter how much Joe Biden and the Democrats may wish, the US Constitution is not a “suicide pact”.  SCOTUS should severely restrict the right of “birthright citizenship” into line with its original pro-American meaning. 

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