The Idea Of ‘Birthright Citizenship’ Rests On Some Fundamental Misunderstandings
Adam Johnston Visit on Twitter @adamkjohnston
Contrary to what ‘experts’ and Democrats say, the 14th Amendment is anything but clear on birthright citizenship.
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.