‘Birthright Citizenship’ Rests On Some Fundamental Misunderstandings

For the first time in decades, long-standing assumptions surrounding America’s immigration system are being directly challenged.

The Trump administration has halted immigration applications from more than 30 countries after an unvetted Afghan national — brought into the U.S. during Biden’s chaotic 2021 withdrawal — allegedly ambushed two National Guard members, killing one and leaving another in serious condition. Additionally, increased ICE operations have led to a reported 2.2 million illegal aliens either self-deporting or being forcefully removed from the country.

These policies, among others, mark a dramatic shift toward restoring control over America’s borders while boldly reasserting sovereignty across all facets of America’s immigration system. But while these policy battles are significant, the constitutional battle now arriving at the Supreme Court will dwarf them all.

At the center of this contentious shift lies a question that has been avoided for generations: Who actually qualifies for American citizenship under the 14th Amendment?

Americans have been repeatedly told that the first sentence of the 14th Amendment makes it clear that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” But the phrase “subject to the jurisdiction thereof” has many interpretations.

Under “consent theory,” legal scholars who reject universal birthright citizenship argue that full jurisdiction requires mutual political consent.

According to this view, an illegal immigrant is not fully “subject to the jurisdiction” of the United States merely by being physically present. Instead, the United States, as a sovereign nation, must affirmatively consent to the person’s presence and membership within its borders and political community.

Without that consent, the argument goes, illegal aliens, and their children born on American soil lack the jurisdictional relationship the Fourteenth Amendment requires for automatic birthright citizenship.

Yet, we have also been told that in 1898, the Supreme Court affirmed that anyone born on U.S. soil is a citizen and that this argument has been settled. This is untrue.

Contrary to proponents of mass immigration, the oft-cited United States v. Wong Kim Ark did not decide the question of children born to illegal immigrants, or even temporary legal immigrants, such as guest workers, but rather only immigrants with lawful, permanent residency.

The truth is, no Supreme Court case has ever held that the children of illegal immigrants are constitutionally required to become citizens at birth. Because the legal category “lawful permanent resident” did not exist in 1898, Wong’s parents were considered “lawfully domiciled” in the U.S. under common law because there was no statute making their presence unlawful.

As such, the Supreme Court has never ruled on whether the children of illegal immigrants are covered by the Citizenship Clause, which is why the legal battle over Trump’s executive order has now made its way to the Supreme Court.

So despite what “experts” on CNN repeatedly say, the 14th Amendment is anything but clear on birthright citizenship.

It’s also important to note that the Constitution has been considered “clear” many times throughout U.S. history, right up until the moment it wasn’t, forcing the Supreme Court to step in. Rights have been discovered, expanded, narrowed, and even eliminated without a single word of constitutional text changing.

Segregation was once upheld as constitutional until it wasn’t. The Bill of Rights did not apply to the states until courts decided it did. Abortion was not a constitutional right, until it was for nearly fifty years, and then it wasn’t again. Marriage was redefined nationwide through judicial declaration, not through a Constitutional Amendment. The list goes on and on.

In each instance, the Constitution’s supposedly “obvious” meaning turned out to be fluid. The left knows this. We know this. And that is why they are terrified that birthright citizenship has the potential to be reinterpreted.

However, it is amusing to watch the political left discover a newfound love for interpreting the Constitution in the strictest of ways. These are the same people who historically cited the Constitution as a document that should be “torched,” or considered a “living document” to be twisted and adapted for modern times. This is the same left that has repeatedly stated that they “can’t win without a new Constitution.”

Yet with birthright citizenship for illegal aliens hanging in the balance, they now argue for a strict textualist reading of the 14th Amendment without any consideration for alternate readings and understanding.

This is also the same left that says “hate speech” and “disinformation” shouldn’t be protected by the First Amendment and that the Second Amendment only protects the right to own muskets. But Birthright citizenship under the 14th Amendment? That’s chiseled in stone.

Why the sudden change of heart? Because the current interpretation of birthright citizenship serves Democrats’ long-term political interests.

Decades of post Hart-Celler large-scale immigration, combined with automatic citizenship for anyone born on U.S. soil, has produced a growing demographic that significantly favors the modern left, as immigrants overwhelmingly vote for the Democrat Party. In short, nullifying birthright citizenship for illegal immigrants would fundamentally reduce the number of future Democrat voters.

The numbers are staggering. Every year, an estimated 250,000 children are born in the U.S. to illegal alien parents and long-term temporary visitors, according to the Center for Immigration Studies.

That’s 250,000 new American citizens, accounting for 7 percent of total U.S. births. Every. Single. Year.

And these are just the “official” estimates as no one truly knows the official number of illegal immigrants in the country, which has ranged from 11 million to 14 million, to 22 million. And these numbers were all estimated before Biden took office and opened America’s borders to millions more.

No sovereign nation can survive if it doesn’t have the right to decide who belongs to its political community, and who doesn’t.

The question in front of the Supreme Court is existential: Is American citizenship a cheap prize for anyone who manages to be born within our geographic territory, or is it priceless, based on a mutual bond, rooted in history, culture, and protected by law?

The answer to this question will decide not just the scope of the 14th Amendment, but the future of the United States.

Adam Johnston is a senior contributor to The Federalist whose work has been featured in The Blaze, WrongSpeak Publishing, and Man’s World Magazine. He is also the creator of conquesttheory.com, where he regularly writes about politics, history, philosophy, and technology. You can find him on X @adamkjohnston.