{"id":724,"date":"2026-06-28T08:39:35","date_gmt":"2026-06-28T08:39:35","guid":{"rendered":"https:\/\/urbaneconomynews.com\/?p=724"},"modified":"2026-06-28T08:39:35","modified_gmt":"2026-06-28T08:39:35","slug":"scotus-rejects-trump-on-birthright-citizenship-phooey","status":"publish","type":"post","link":"https:\/\/urbaneconomynews.com\/?p=724","title":{"rendered":"SCOTUS Rejects Trump on Birthright Citizenship? Phooey!"},"content":{"rendered":"
\n

It\u2019s just ruling on the EO. This will kick off the real debate\u2014on statutory\/constitutional amendment solutions\u2014which the Left will lose.<\/em><\/p>\n

Read more Communist China Is a Pariah, It\u2019s Time to Treat It Like One<\/a><\/p>\n

Peter Brimelow <\/strong>writes:<\/strong><\/p>\n

A funny thing happened late last week after the U.S. Supreme Court handed the Trump administration two decisive immigration victories, on ending Temporary Protected Status and on not releasing asylum seekers into the country. SCOTUS watchers got even more pessimistic about the administration\u2019s winning the pending birthright citizenship case, Trump v. Barbara<\/em>. Shockingly, they think that SCOTUS rules not on the law but with an eye to minimizing political backlash.<\/p>\n

My reaction: Phooey! Remember, SCOTUS is not ruling on birthright citizenship per se but on whether it can be abolished by executive order. (Which means that, even if Trump won this case, birthright citizenship could be reinstated simply by the next Dem president\u2019s reversing the EO.)<\/p>\n

SCOTUS is not God. Even if it does miraculously find birthright citizenship in the U.S. Constitution, that can be overruled by the legislative process.<\/p>\n

And, ultimately, a statute or constitutional amendment will be necessary. That\u2019s how we got a federal income tax: a constitutional amendment was passed after SCOTUS ruled that an income tax imposed by statute was unconstitutional.<\/p>\n

But having to go the\u00a0statutory\/constitutional amendment\u00a0route is GREAT, because it ensures that the birthright citizenship issue will GET INTO PUBLIC DEBATE (you know, like in a democracy, the Left would lose).<\/p>\n

GOP legislators have already introduced bills into Congress to deal with birthright citizenship by statute and by constitutional amendment.<\/p>\n

I am SURE the Trump administration is ready to spring into action and get the GOP congressional leadership to move these bills!<\/p>\n

And I am even MORE confident than Trump immigration whisperer\u00a0Stephen Miller\u00a0is.<\/p>\n

A week is notoriously a long time in politics. But 25 years can pass in the blink of an eye.<\/p>\n

This birthright citizenship\u00a0issue was unheard of in public debate when VDARE.com ran its first major analysis back in 2001, posted below. (I must admit that, at that time, the Executive Action solution simply didn\u2019t occur to us\u2014it appears to have been subsequently thought up by Michael Anton. But, hey, let 100 flowers bloom). Because the issue was then so revolutionary, we added a VDARE.com introduction.<\/p>\n

The analysis, however, is now more current than ever.<\/p>\n

\u201c<\/em><\/strong>Weigh Anchor! Enforce the Citizenship Clause,\u201d by\u00a0Nathaniel Parker.\u00a0First published on VDARE.com, August 31, 2001.<\/p>\n

VDARE.com<\/strong> comments:<\/strong><\/p>\n

Get ready to hear more about amnesty (or whatever they\u2019re calling it now) when Mexico\u2019s Fox visits America\u2019s Bush\u00a0next week. Already, the Bush administration\u2019s admission that it intends to connive at the continued colonization of the United States by contemplating another, bigger\u00a0amnesty has caused\u00a0muttering\u00a0amongst the American peasantry. It has even been necessary to call out the guard dogs, such as the\u00a0Wall Street Journal<\/em>\u2019s\u00a0Paul Gigot, to snarl the serfs back into appropriate subservience.<\/p>\n

But it is crucial to realize that in reality, amnesty is already being granted in slow motion\u2014merely by the reconquistas<\/em> and their peers being permitted to live and have children here. This is because of a wrong-headed interpretation of the 14th\u00a0Amendment. As Nathaniel Parker explains below, no such interpretation was ever intended by the Reconstruction Congress.<\/p>\n

Because any baby born in America is currently deemed to have an absolute right to American citizenship, his parents, siblings, and ultimately his extended family obtain an enormously enhanced ability to be here. With \u201cfamily reunification,\u201d rather than skill sets, and sentimentalism, rather than self-interest, being the themes of immigration policy, this \u201canchor baby\u201d\u00a0effect rips a huge chasm in effective immigration control.<\/p>\n

Fixing this flaw deserves utmost priority. No responsible political leader could consider an amnesty otherwise. Could they?<\/p>\n

The problem could be eliminated either by sensible judges, if any such exist, or by an act of Congress. A constitutional amendment is not required. Political will is.<\/p>\n

This is probably the most serious article that VDARE has published. But, hey, it\u2019s a long weekend. And we figure the great glory of the Internet is that it can handle any level of seriousness. We offer it as a resource. Bookmark for future reference!<\/p>\n

Nathaniel Parker<\/strong>:<\/strong><\/p>\n

One simple reform would end a powerful incentive luring would-be illegal aliens from around the world to the United States: adjust the currently tortured interpretation of the right to citizenship expressed in the\u00a014th\u00a0Amendment. Absurdly, current federal policy is to confer American citizenship automatically on any child (with very narrow exceptions, none applicable to illegal aliens) born within the United States. The legal status of the parents is deemed irrelevant. We must accept that a baby born to foreign parents five minutes after they crept over the border illegally is just as American as a baby whose parents are both Americans and U.S. citizens and whose ancestors have been here 350 years.<\/p>\n

This new \u201cAmerican\u201d is not the end of the story, either. The U.S.-born child becomes an anchor in American soil that will permit his parents and minor siblings to remain and, later, his grandparents, aunts, uncles, in-laws, and all of their children to immigrate legally, not to mention any friends and acquaintances from home who may follow them illegally. All of their children born here will also be considered American citizens. Neither the Census Bureau nor the INS can say how many aliens have availed themselves of this gift already. We can only be sure that many millions more will also, unless Americans end it.<\/p>\n

This perversion of American citizenship, commonly called \u201cbirthright citizenship,\u201d is the result of the federal government and judiciary\u2019s willful misinterpretation of the Citizenship Clause of the 14th\u00a0Amendment to the U.S. Constitution.i\u00a0In truth, the Citizenship Clause confers nothing so broad. The plain language of the 14th\u00a0Amendment does not grant automatic birthright citizenship. A review of the Senate debate before the 14th\u00a0Amendment\u2019s ratification makes clear that the Citizenship Clause\u2019s proponents were careful to preclude any automatic grant of citizenship based only on birth within the territory of the United States.<\/p>\n

Some legal theorists, along with those who favor unrestricted immigration, argue that only another amendment to the Constitution would be constitutionally adequate to end automatic birthright citizenship. That is wrong. All we need to do is read (and enforce) the Citizenship Clause as written. Legislation to enforce the limits inherent in the Citizenship Clause is well within the Congress\u2019s constitutional power. As the 14th Amendment itself explicitly states, \u201cThe Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.\u201dii<\/p>\n

The Citizenship Clause of the 14th Amendment<\/strong><\/p>\n

The first sentence of the 14th\u00a0Amendment says:<\/p>\n

All persons born or naturalized in the United States, and subject to the jurisdiction thereof<\/strong>, are citizens of the United States and of the State wherein they reside. (Emphasis added.)<\/p>\n

To hold that the Citizenship Clause confers birthright citizenship on anyone born in the United States is to ignore the phrase \u201cand subject to the jurisdiction thereof\u201d: a selective misreading of plain English. No argument rooted in the Constitution can support automatic birthright citizenship. The only question is how broadly to read the jurisdiction phrase in the Citizenship Clause. Logic, assisted by the Senate floor debate, answers this. The U.S. Supreme Court has since clouded the picture with its relatively few rulings on the Citizenship Clause, but despite what we are often encouraged to believe by some justices and law professors, the Constitution does not mean only what the Supreme Court says it does. Even so, the Court has never held that the Citizenship Clause automatically confers U.S. citizenship on\u00a0all<\/strong>\u00a0children born within the territory of the United States.<\/p>\n

The Ratification Debate<\/strong><\/p>\n

The 14th\u00a0Amendment, ratified on July 9, 1868, is the second of the three Reconstruction amendments to the Constitution ratified in the years immediately following Union victory in the War Between the States. A primary concern of the amendment\u2019s proponents was the extension of civil rights to recently freed slaves. Senators feared that state legislatures would assert that, not having been born U.S. citizens, emancipation did not make freedmen citizens of their states (hence, of the United States; state citizenship was a prerequisite to U.S. citizenship). To forestall any denial of citizenship to freed blacks and to overturn the\u00a0Dred Scott decision iii\u00a0explicitly, the 14th\u00a0Amendment\u2019s proponents introduced the Citizenship Clause.<\/p>\n

Nevertheless, they were well aware that a blanket grant of birthright citizenship was not consistent with American tradition and could lead to a demographic transformation in the event of high immigration. To prevent it, the senators included the jurisdiction phrase. The floor debate[iv]\u00a0reveals their concerns and their views of how far birthright citizenship should extend.<\/p>\n

Introducing the proposed amendment, Senator Jacob Merritt Howard of Michigan stated that he believed the Citizenship Clause was \u201csimply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States and subject to their jurisdiction is, by virtue of natural and national law, a citizen of the United States.\u201d He went on to say specifically whom he considered that natural and national law excluded:<\/p>\n

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 accredited to the Government of the United States, but will include every other class of persons.<\/p>\n

The only, tenuous, way to read Senator Howard\u2019s statement to support birthright citizenship for the children of illegal aliens or, indeed, most legally resident aliens is to assume that the only foreigners or aliens he meant are those belonging to the families of diplomats. The simpler reading is to construe the sentence as what it is: a list of excluded categories.<\/p>\n

Senator James Doolittle of Wisconsin was troubled by Howard\u2019s language, not because he wanted to find a way to include any foreigners or aliens, but because he\u00a0wanted to ensure that American Indians remained excluded<\/strong>. Howard (and, ultimately, the Senate) thought Doolittle\u2019s proposed clarification unnecessary. As Howard pointed out:<\/p>\n

Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi-foreign nations.<\/p>\n

It is, or should be, clear that language denying citizenship to people born within the United States on the theory that they were subject to \u201cquasi-foreign nations\u201d must exclude the children of people who have broken this country\u2019s laws in entering it and whose whole allegiance is to entirely foreign nations.<\/p>\n

Senator Edgar Cowan of Pennsylvania spoke at length about the limits of citizenship and the rights of states (and, by extension, the federal government: senators in 1866 still acknowledged that the powers of the federal government were those expressly delegated to it by the states in the Constitution) to control who may enter from abroad:<\/p>\n

[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word.<\/p>\n

It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power. . . . I have supposed . . . that it was essential to the existence of society itself, and particularly essential to the existence of a free State, that it should have the power, not only of declaring who should exercise political power within its boundaries, but that if it were overrun by another and a different race, it would have the right to absolutely expel them.<\/p>\n

I do not know that there is any danger to many of the States in this Union; but is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration . . . ? Are they to be immigrated out of house and home by Chinese? I should think not. It is not supposed that the people of California, in a broad and general sense, have any higher rights than the people of China; but they are in possession of the Country of California, and if another people, of different religion, of different manners, of different traditions, different tastes and sympathies are to come there and have the free right to locate there and settle among them, and if they have an opportunity of pouring in such an immigration as in a short time will double or treble the population of California, I ask, are the people of California powerless to protect themselves? . . . As I understand the rights of the States under the Constitution at present, California has the right, if she deems it proper, to forbid the entrance into her territory of any person she choose who is not a citizen of some one of the United States.<\/p>\n

His terms might seem impolitic today. But what Senator Cowan would think of the current interpretation of the Citizenship Clause is clear. Cowan took pains to point out that he was not denying the human or civil rights of foreigners generally; his concern was with their relation to the United States:<\/p>\n

I wish to be understood that I consider those people to have rights just the same as we have, but not rights in connection with our Government. If I desire the exercise of my rights, I ought to go to my own people, people of the same beliefs and traditions, and not thrust myself in upon a society of other men entirely different in all those respects from myself. I would not claim that right.<\/p>\n

The notion that an accident of geographic location at birth could confer U.S. citizenship on someone whose family had no prior connection to the United States, no attachment to America other than presence on its soil at that moment, was utterly alien to Senator Cowan and his colleagues. What Senator Cowan would think of the Mexican government\u2019s recent demands of the United States with respect to the millions of its citizens now in the United States illegally (blanket amnesty plus guest-worker programs; Spanish-language schooling at American taxpayer expense; full access to all American social welfare programs, again at American taxpayer expense) is equally clear.<\/p>\n

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Senator John Conness of California, an Irish immigrant himself, was less worried than Cowan about the disruptive potential of birthright citizenship. Speaking of the Chinese of his day, he said:<\/p>\n

It is only in exceptional cases that they have children in our State; and therefore the alarming aspect of this provision to California, or any other land to which the Chinese may come as immigrants, is simply a fiction in the brains of persons who deprecate it, and that alone.<\/p>\n

Cowan seems to have been a better prophet than Conness. Could Conness have foreseen the Mexican (and Chinese) population explosion of the twentieth century and the attendant demographic pressure on California and the rest of the country, he probably would not have been so sanguine.<\/p>\n

The Senate expanded its debate of \u201csubject to the jurisdiction thereof\u201d in the context of American Indians. Most Indians were people present (and bearing children) within the United States who had never been considered citizens because generally they were not considered subject to the jurisdiction of any state; Indians who had become assimilated (and become taxpayers) in a state were considered citizens. Senator Doolittle emphasized the weighty consequences of granting citizenship:<\/p>\n

Citizenship, if conferred, carries with it, as a matter of course, the rights, the responsibilities, the duties, the immunities, the privileges of citizens, for that is the very purpose of this constitutional amendment to extend. . . . In the Constitution as [the Founding Fathers] adopted it they excluded the Indians who are not taxed; not enumerate them, indeed, as part of the population upon which they based representation and taxation; much less did they make them citizens of the United States.<\/p>\n

Doolittle was especially concerned to ensure that the citizenship clause would not be read to confer citizenship on Indians, even those on reservations receiving food from the War Department and, in his view, to that limited extent, subject to the jurisdiction of the United States. In response, Senator Lyman Trumbull of Illinois, the Chairman of the Judiciary Committee, dismissed any notion that the Citizenship Clause could be read that way:<\/p>\n

It is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that \u201call persons born in the United States, and subject to the jurisdiction thereof, are citizens.\u201d That means \u201csubject to the complete<\/strong>\u00a0jurisdiction thereof\u201d [emphasis added]. Now does the Senator from Wisconsin pretend to say that the Navajo Indians are subject to the complete jurisdiction of the United States? By no means. We make treaties with them. . . . It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government [by which Trumbull means his tribe] that he is \u201csubject to the jurisdiction of the United States.\u201d . . .\u00a0It is only those persons who come completely within our jurisdiction, who are subject to our laws<\/strong>, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens. (Emphasis in original.)<\/p>\n

Senator Reverdy Johnson of Maryland (the lone Democrat among the senators quoted; all the others were Republicans in this Reconstruction Senate) was less certain than his colleagues that the proposed amendment clearly excluded Indians not taxed, but wished to clarify how American citizenship was created. He accepted that birthright citizenship for the children of U.S. citizens was natural and the appropriate norm, but worried that the proposed amendment might be read too broadly:<\/p>\n

Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign power<\/strong>\u2014for that, no doubt, is the meaning of the committee who have brought the matter before us\u2014shall be considered as citizens of the United States. . . . I am, however, by no means prepared to say, as I think I have intimated before, that being born within the United States, independent of any new constitutional provision on the subject, creates the relation of citizen to the United States. (Emphasis in original.)<\/p>\n

Johnson went on to quote from the Civil Rights Act of 1866,v which had just passed. He considered that its wording better expressed what the Citizenship Clause was meant to achieve: \u201cThat all persons born in the United States\u00a0and not subject to any foreign Power<\/strong>, excluding Indians not taxed, are hereby declared to be citizens\u201d (emphasis added). None of his colleagues, not least Senator Howard, the Citizenship Clause\u2019s proponent, disagreed.<\/p>\n

The Citizenship Clause in the Supreme Court<\/strong><\/p>\n

The Citizenship Clause has been surprisingly little litigated. Supreme Court opinions construing it have almost all addressed the question of when and why a U.S. citizen, whether native or naturalized, may be stripped of his citizenship. The Court has held that U.S. citizenship, once conferred, cannot easily be taken away. The current interpretation (in which Justice Hugo Black, one of the Warren Court\u2019s more creative jurists,\u00a0read meaning\u00a0into the 14th\u00a0Amendment that is not there) is that U.S. citizenship can never be involuntarily relinquished.vi\u00a0More importantly, just as the Court maintains that the government cannot unilaterally strip a U.S. citizen of his citizenship, an individual cannot unilaterally decide to be a U.S. citizen. Citizenship is not self-selected: it is granted on the basis of qualification for it. Throughout the Supreme Court\u2019s citizenship jurisprudence runs a thread of reciprocity between the individual and the nation, subject to the principle that no one can become a citizen of a nation without its consent.<\/p>\n

No Automatic Birthright Citizenship: The Case of American Indians<\/strong><\/p>\n

In 1884, the Supreme Court ruled on the applicability of the Citizenship Clause to an American Indian.vii\u00a0John Elk was an Indian born within the territory that some years later became the state of Nebraska. At statehood in 1867, Nebraska limited the franchise to adult male citizens who had been\u00a0bona fide<\/em> residents in Nebraska for all of the previous six months prior to an election. In 1880, Elk sought to vote in a Nebraska election, claiming U.S. citizenship on the basis of the Citizenship Clause. At the time, he had been living in Omaha for more than a year and had renounced his tribal affiliation. When his case finally reached it, the Supreme Court rejected Elk\u2019s claim to citizenship.<\/p>\n

In its\u00a0opinion, the Court applied the \u201csubject to the jurisdiction thereof\u201d phrase, interpreting it in light of its ratifiers\u2019 Senate debate:<\/p>\n

The evident meaning of [the jurisdiction phrase] is 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. Indians born within the territorial limits of the United States . . . although in a geographical sense born in the United States, are no more \u2018born in the United States and subject to the jurisdiction thereof\u2019 within the meaning of the [Citizenship Clause], than the children of subjects of any foreign government born within the domain of that government . . .<\/p>\n

In\u00a0Elk, the Supreme Court was true to the meaning of the Citizenship Clause, both as its drafters wrote it and, from the Senate debate, as they evidently meant it. The opinion makes clear that the status of the parents of a child born within the territory of the United States determines whether or not the child is eligible for U.S. citizenship. To qualify the child for citizenship, his parents must be \u201ccompletely subject\u201d to the jurisdiction of the United States and must owe \u201cdirect and immediate\u201d allegiance to the United States.<\/p>\n

The obvious corollary to being completely subject to the jurisdiction of one nation and owing it direct and immediate allegiance is that one can have no conflicting obligations to another. In\u00a0Elk, the competing sovereign to which John Elk was held to have disqualifying allegiance was his tribe, even though he had renounced membership in it. The legality of Elk\u2019s presence in the United States was not an issue; his right to be in Nebraska was not disputed.<\/p>\n

In the case of illegal aliens, the\u00a0illegality<\/strong>\u00a0of their presence in the United States is not in dispute. They remain entirely subject to the jurisdiction of their home countries, the only nations to which they owe direct and immediate allegiance. To reason that, through breaking the laws of the United States by entering and remaining illegally, an illegal alien has somehow transferred his allegiance from his home country to the United States is absurd. One does not pledge allegiance to any republic by entering it uninvited and flouting its laws through his continued presence. It is more absurd still to allege that, by breaking into its territory, the illegal alien subjects himself willingly to the jurisdiction of the nation he has invaded. The only jurisdiction to which he is willingly subject, if any, is that of his own country, which does not renounce its claim on his allegiance or its right to exercise jurisdiction over him merely because he has chosen to be a squatter somewhere else. The Mexican government\u2019s activism on behalf of all Mexicans in the United States (even those with U.S. citizenship) is the example of greatest concern to Americans, but not the only one.<\/p>\n

Proponents of amnesties for illegal aliens may argue that, by analogy to the former denial of citizenship to \u201cIndians not taxed,\u201d illegal aliens effectively subject themselves to U.S. jurisdiction by paying sales tax when they buy things in the United States. Even ignoring their massive evasions of federal and state income tax, the argument is a red herring. The only meaningful subjection to the jurisdiction of the United States that an illegal alien can make is his prompt surrender to the INS. The Supreme Court in\u00a0Elk\u00a0denied birthright citizenship to a man with far stronger links to America than any illegal alien, a man who was a resident in compliance with American law. The Court did so on the basis of a common-sense reading and application of the Citizenship Clause, one that gives due weight to its jurisdiction phrase and reflects the understanding of its drafters. There is no latitude in that correct interpretation for any grant of U.S. citizenship to U.S.-born children of illegal aliens. While the immediate issue in\u00a0Elk\u00a0became moot in 1924 with the Congress\u2019 grant of U.S. citizenship to all American Indians in the United States, the Court never overruled\u00a0Elk\u00a0and has never repudiated\u00a0Elk\u2018s analysis of the Citizenship Clause.<\/p>\n

Birthright Citizenship for Legal Immigrants\u2019 Children? The Supreme Court Overreaches<\/strong><\/p>\n

It is clear that the Citizenship Clause does not justify granting citizenship to illegal aliens\u2019 U.S.-born children. Does it justify granting citizenship to the U.S.-born children of legally resident aliens? In a ruling that ignored (while not denying) the Court\u2019s\u00a0Elk\u00a0analysis, a later Supreme Court mistakenly held that it does. In 1898, the Supreme Court granted citizenship to\u00a0Wong Kim Ark.viii Wong Kim Ark, born in San Francisco, was the son of Chinese nationals who were not eligible for U.S. citizenship and who ultimately returned to China. In 1895, Wong Kim Ark returned to San Francisco from a voyage to China and was denied entry on the grounds that he was not a U.S. citizen. He sued, and his case made its way eventually to the Supreme Court.<\/p>\n

A majority of the Court held that Wong Kim Ark was a U.S. citizen through the operation of the Citizenship Clause. The majority opinion is a lengthy disquisition on the English common law understanding of citizenship and how it is acquired, and how those common law antecedents made their way into the laws of the United States. The Court preferred the older English view of jus soli<\/em>\u00a0birthright citizenship, which had allowed the Crown to assert jurisdiction over anyone born in England, no matter who his parents were. Paradoxically, an ancient doctrine designed to extend the power of the English crown over as many subjects as possible was invoked to grant U.S. citizenship to a Chinese subject returning to California. The majority gave short shrift to the intent of the Citizenship Clause\u2019s framers. They ignored the fact that, by putting the Citizenship Clause, qualified by the jurisdiction phrase, into the Constitution, the country had deliberately superseded the common law view. They preferred to read the jurisdiction phrase as applying to little more than the children of accredited diplomats.<\/p>\n

The dissenting minority paid more attention to the Senate ratification debate and also noted the language of the contemporaneous Civil Rights Act of 1866, which used the phrase \u201cand not subject to any foreign power\u201d in lieu of the Citizenship Clause\u2019s jurisdiction phrase. While we might criticize the 36th\u00a0Congress for poor drafting, it does not make sense to say that the drafters of the essentially simultaneously enacted Civil Rights Act of 1866 and the 14th\u00a0Amendment meant to create two different standards for U.S. citizenship. The dissenters also noted, correctly, that there is nothing in the wording of the Citizenship Clause or the Civil Rights Act of 1866 that limits the application of the \u201csubject to the jurisdiction thereof\/not subject to any foreign power\u201d language only to diplomats or other accredited representatives of foreign governments. Similarly, there is no warrant in the Citizenship Clause for automatic extension of birthright citizenship to the children of aliens legally resident in the United States. They are subject to another jurisdiction: that of their parents\u2019 (and their own) native countries.<\/p>\n

In\u00a0Wong Kim Ark<\/em>, the Supreme Court treated the jurisdiction phrase of the Citizenship Clause as almost a nullity. The Court was not in fact ruling on illegal aliens, which is today\u2019s larger problem, but\u00a0Wong Kim Ark\u2019s<\/em>\u00a0over-expansive reading of the Citizenship Clause is substantially to blame for the current mistaken policy of extending birthright citizenship to illegal aliens\u2019 children.<\/p>\n

Citizenship for Whom? Applying the Citizenship Clause<\/strong><\/p>\n

There has been no test case yet of the applicability of the Citizenship Clause to illegal aliens. In the current political climate, it is very unlikely that there will be one. It is hard to imagine the INS under this Bush administration (or any Democratic administration) suing to deprive a Mexican child of U.S. citizenship.<\/p>\n

The issue is properly one for the Congress, pursuant to its powers under Article I of the Constitution and the explicit grant of Congressional enforcement authority in Section 5 of the 14th\u00a0Amendment.<\/p>\n

Not all congressmen are ducking the issue. A number of bills to conform the application of the Citizenship Clause to the way it is written have been introduced in the House of Representatives. The most recent is\u00a0H.R. 190, introduced by\u00a0Rep. Robert Stump\u00a0of Arizona on January 3, 2001. H.R. 190 would\u00a0deny citizenship\u00a0to the U.S.-born child of \u201ca mother who is neither a citizen or national of the United States nor admitted to the United States as a lawful permanent resident.\u201d H.R. 190 would consider such a child born subject to the jurisdiction of his parents\u2019 country and a citizen of that country and not of the United States.<\/p>\n

But H.R. 190 would be only one step in the right direction. The Citizenship Clause gives Congress more power than that to prevent the unintended gift of U.S. citizenship to foreign nationals\u2019 children born in the United States. At a time of largely uncontrolled immigration into the United States, with social tensions growing and the fragmentation of the national polity ever more likely, the Congress must, within the constraints set by the Citizenship Clause, take control of that most basic element of American civic life: who is and who is not entitled to be a citizen of the United States at birth.<\/p>\n

Clearly, under the Citizenship Clause the Congress has no power to deny citizenship to a U.S.-born child of American parents who is in no way subject to any foreign power. But the truth is, that is all the Citizenship Clause says.<\/p>\n

Reasonable legislation to enforce the Citizenship Clause would provide that:<\/p>\n