Taking Citizenship Seriously
The Significance Of Donald Trump's Stand On Birthright Citizenship
The corporate media propaganda about President Donald Trump peremptorily “ending” birthright citizenship in this country continues. In keeping with corporate media’s proud tradition of gaslighting people, confusion and obfuscation abound.
If one takes corporate media at face value, Donald Trump is all but cancelling people’s passports and stripping US citizens of their citizenship.
Al Jazeera wants you to believe that birthright citizenship is an established constitutional right.
Birthright citizenship refers to a constitutionally protected right that grants automatic US citizenship to babies born in the country.
This is a sweeping generalization that is, like all generalizations, fundamentaly false.
CNN, the Most Busted Name In Fake News, goes even farther, suggesting that birthright citizenship has 150 years of solid US legal and Constitutional tradition.
For one, it clearly states that American citizenship is a birthright for all people who are born on American soil — something that President Donald Trump has announced he wants to end. Not only would this unravel 150 years of American law, it would loosen a significant cornerstone of the Constitution’s interpretation of American identity.
As is typical of factual assertions by CNN, this is simply false.
Donald Trump’s policy objective is clearly stated: he means to defend citizenship not just as a legal status but as an organizing principle for this country.
Citizenship matters for every nation. Citizenship is how people establish not just their own national identity but also the identity of their nation. Citizenship is how people declare their loyalties in this world.
It matters, therefore, that we examine this question of birthright citizenship closely, and give serious credence to all arguments over to whom it should apply.
Correcting The Media…Again
It is hardly newsworthy to say that corporate media got this story wrong—corporate media outlets get so many stories wrong so often it is a wonder these outlets continue to exist.
They do exist, however, and so we need to be especially diligent about what Donald Trump’s Executive Order actually says.
Most importantly, it is a blatant falsehood that Donald Trump proposes to end all birthright citizenship. The text of the Executive Order makes that clear:
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Fundamentally, a child born with at least one parent who is a lawful permanent resident of the United States is a citizen at birth.
Fundamentally a child born with neither parent a lawful permanent resident of the United States is not a citizen at birth.
So long as one parent is a lawful permanent resident of the United States, any child born in the United States is a citizen of the United States.
Does that sound like a campaign to end birthright citizenship?
Additionally, the Executive Order explicitly precludes interpreting it in such a way as to deny citizenship petitions or preclude people from receiving their otherwise lawful citizenship documents.
Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.
Does this sound like a campaign to deprive people of their lawful citizenship?
Understand that when the media is saying that Donald Trump wants to “end” birthright citizenship, they are blatantly lying to you….again!
Arguments Are Not Rulings
We do well to also note that most, if not all, of the arguments in favor of universal birthright citizenship rest on the opinions of “legal scholars”—which is to say they do not rest upon actual Supreme Court cases.
These arguments are, at best, “expert opinions”, which are foundationally the lowest quality of evidence there can be—such is the conclusion of medical professionals1, who practice a discipline at least as reliant upon facts and evidence as the law:
Several depictions of the evidence pyramid consider EO as a level of evidence and place it at the bottom of the pyramid as a unique category, or combined with preclinical studies and case reports, implying low validity. However, the term ‘opinion’ is defined in dictionaries as a ‘generally held view’, a ‘belief’ or a ‘judgement formed in the mind about a particular matter’. These definitions are not fully congruent with the definition of evidence as an empirical observation.
I will point out that this article is open to the same challenges—these conclusions are mine, and not a finding of any court nor are they written into any statute. People are welcome to look at my research materials and come to their own conclusions. I provide links and sources for precisely this reason, and I welcome any and all who disagree with me to politely discuss the matter in the comments section below.
Yet in the matter of citizenship, opinions seem to be the dominant mode of argument there is, rather than case law and court rulings.
This is true of the Congressional Research Service when Donald Trump first broached the topic of ending claims by illegal aliens to birthright citizenship for their offspring (emphasis mine)2:
At least since the Supreme Court’s decision in the 1898 case United States v. Wong Kim Ark, the prevailing view has been that all persons born in the United States are constitutionally guaranteed citizenship at birth unless their parents are foreign diplomats, members of occupying foreign forces, or members of Indian tribes.
“Prevailing view” is a consensus opinion, and cannot be taken as unilaterally authoritative (a major reason why I quote sources liberally is to establish that I am faithfully recounting those things which others have said).
To its credit, the Constitution Daily Blog acknowledges the limitations of current case law on the topic and does not presume to be the final word on the citizenship text of the Fourteenth Amendment:
An executive order looking to change the rule would likely be challenged in court. During President Trump’s previous desire to pursue an executive order he also indicated that the case could wind up at the Supreme Court through the appeals process and the court would have to rule on the constitutionality of such an executive order. “While extant legal authority indicates that neither Congress nor the Executive may deny recognition of birthright citizenship based on the immigration status of a person’s parents, the Supreme Court has not firmly settled the issue in the modern era,” the CRS noted in 2018.
When corporate media presumes to present birthright citizenship as a settled political, legal, or constitutional issue in this country, they are again lying.
What The Supreme Court Has Said: Elk v Wilkins
There are not many Supreme Court cases which touch on the citizenship clause of the Fourteenth Amendment. One of the earliest cases, Elk v Wilkins3, found that a member of a Native American tribe could not claim automatic (birthright) citizenship, as tribal status precluded that claim.
The primary holding in Elk was an affirmation that the phrase “subject to the jurisdiction” was of considerable significant in determining whose offspring is eligible for birthright citizenship (emphasis mine):
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words 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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
This can be further substantiated by recalling the Congressional debates over the 14th Amendment, upon which I have commended previously.
During those debate, Senator Lyman Turnbull, one of the principal authors of the Fourteenth Amendment, offered this assessment of what the phrase means:
The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
The view in Elk, therefore, is that the capacity to endow one’s offspring with American citizenship requires more than being geographically situated within the territory of the United States.
What else would be required? Political jurisidiction, which is to say the parents both owe and acknowledge allegiance to the United States.
Can an illegal alien claim they acknowledge allegiance to the United States? No. They cannot, and the further exploration of the matter in United States v. Wong Kim Ark4 establishes why.
What The Supreme Court Has Said: Wong Kim Ark
Wong Kim Ark is perhaps the most significant citizenship case, and certainly is the one most often cited. Many have argued the case establishes birthright citizenship for all, as Wong, born in the United States of Chinese immigrants permanently domiciled in the United States, was able to claim birthright citizenship even though his parents were legally precluded from obtaining citizenship due to the naturalization laws of the time. However, that is an overbroad reading of the ruling.
To understand Wong Kim Ark, one has to note that the court relied heavily on English common law to “fill in the blanks” of American common law where citizenship was concerned.
Specifically, in citing another case, the Court noted:
"There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."
Upon this logic, the Court proceeded to mine English case law for insights as to how to adjudicate the interpretation of the Fourteenth Amendment.
The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
The arguments made by many is that this logic holds that everyone born in the United States is a citizen of the United States.
However, this would contradict Elk, as Indians even in 1884 were clearly born within the United States, yet were not found to be citizens of the United States. Wong Kim Ark reconciles itself to Elk by highlighting the somewhat narrow predicate of that case as being the status of members of the various Native American tribes, and then taking a more expansive view of the case.
The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
Yet does this mean that Elk was overturned? No. Quite the contrary. Wong Kim Ark explicitly upholds Elk, and even if it was not explicit we must still conclude that it was not overturned by virtue of the fact that Congress would in 1924 explicitly grant citizenship to all members of Native American tribes5.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.
Had Elk been overturned, the 1924 citizenship act would have been superfluous.
However, we need to consider closely the text of the Wong Kim Ark ruling, for it contains an important exclusion that has been almost universally overlooked: “children born of alien enemies”. This exclusion has an important bearing on the proper context of “subject to the jurisdiction”.
As I articulated in my previous treatment of this topic, the phrase “subject to the jurisdiction” is properly apprehended as "owing obedience or allegiance to the power or dominion of the jurisdiction of the United States."
This view is supported by the English common law reasonings referenced in Wong Kim Ark, in its reference to Sir William Blackstone’s definition of “subjectship” (that being the English analog to American citizenship, emphasis mine):
Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto.
Which brings us back to the exclusion in Wong Kim Ark of “children born of alien enemies”.
An “enemy alien” is, within international law, understood to be a non-native where there is a conflict with a nation’s government6:
In customary international law, an enemy alien is any native, citizen, denizen or subject of any foreign nation or government with which a domestic nation or government is in conflict and who is liable to be apprehended, restrained, secured and removed.
Broadly, within the US aliens are delineated by the conditions of their entry:
1) n. a person who is not a citizen of the country. 2) in the United States any person born in another country to parents who are not American and who has not become a naturalized citizen. There are resident aliens officially permitted to live in the country and illegal aliens who have sneaked into the country or stayed beyond the time allowed on a visa.
As an operation of law, any person who has illegally entered any country clearly has a conflict with that country. The very act of illegal entry is a defiance of the laws of that country, which is conflict by definition.
While we might demur from referencing illegal aliens as “enemy aliens”, owing to the rather greater pejorative effect of “enemy” relative to “illegal”, can we realistically claim that people who are in the United States illegally are not in conflict with the government of the United States?
I do not see how we can.
That there is a base level of conflict with the US government which arises from the illegal alien’s act of illegal entry, and their remaining in the United States in defiance of US law, by the very clear and explicit reasoning of Wong Kim Ark means that illegal aliens cannot endow their offspring with US citizenship.
My assertion from my earlier treatment still stands:
As a matter of law and of logic, if the illegal alien wishes to be subject to the laws of the United States, the first step he must take must necessarily be to remove himself from the United States.
Far from establishing birthright citizenship for the children of illegal aliens, a close reading of Wong Kim Ark shows that it unambiguously denies it—because illegal aliens do not fall under the heading “subject to the jurisdiction”.
The importance of that phrase ironically illustrates why the third case cited in birthright citizenship cases, Plyler v Doe7, is in fact wholly irrelevant.
What The Supreme Court Has Said: Plyler v Doe
Plyler v Doe is significant not for upholding the principle of birthright citizenship—which it does not even address—but for affirming that fundamental rights are not conditioned upon citizenship.
While the question of jurisdiction is common to both Plyler and Wong Kim Ark, the nature of that jurisidiction is subtly different, as Plyler relies on the Equal Protection clause rather than the citizenship clause of the 14th Amendment.
Specifically, Plyler held that illegal aliens are indeed “within the jurisdiction” of the United States.
Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction."
Significant here is the variation in wording between the Citizenship Clause and the Equal Protection Clause, which reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Why should we draw a fine distinction between the phrase “subject to the jurisdiction” and “within the jurisdiction”? We should do so because different words have different meanings, and thus convey different ramifications in the whole of the text.
Specifically, “within” stands in the Equal Protection Clause as a preposition, with the subsequent phrase “within the jurisdiction” serving as adjective to “person.”
As a preposition, “within” indicates either enclosure or containment.
As was obvious in Elk, a person can be “within” the jurisdiction of the United States and not be “subject” to the jurisdiction of the United States. As both Elk and Wong Kim Ark make clear, the phrasing “subject to the jurisdiction” is significant when apprehending questions of citizenship, and in particular birthright citizenship.
It is a curious departure from logic, therefore, to suggest that Plyler establishes that there is no substantive difference between the two phrases. Plyler makes no such assertion.
What Plyler does reaffirm—and rightly, I should add—that fundamental rights are not conditioned upon citizenship. Fundamental rights follow personhood, not citizenship, and Plyler dispenses with any intimation that the illegal alien is not a person.
Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term.
However, citizenship is not a fundamental right, but one that is under the explicit regulation and purview of Congress, as Article 1 Section 8 of the Constitution makes plain:
To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
While the illegal alien can claim and should be afforded the equal protection of the laws, that equal protection cannot ever extend to the granting of citizenship, either to the illegal alien or their offspring. To argue otherwise is to take away from the Congress the legislative power the Constitution has expressly accorded it.
What The Law Says
While people can in good conscience and good faith debate what the law should say, or what government policy should be, there is no room for debate about what the law in fact does say. Nor should we ever lose sight of the reality that immigration is always a question of law and not “justice”.
There can be no debate that illegal entry by an alien is a crime under US law8. It is a crime for which enhanced penalties are assessed when there is repeat offense9.
There can be no debate that the law delegates to the President broad authority to bar aliens from entering the United States10.
There can be no debate that the law states that illegal aliens are to be deported11.
Every person in this country illegally is, by law, subject to deportation. That is what the law says as of this writing.
Whether or not these laws are good or bad policy does not alter the reality that these laws are unambiguously Constitutional. Congress is expressly given the power by the Constitution to enact these laws.
Congress has likewise been given the power by the Constitution to change these laws. People have an absolute inalienable right under the First Amendment to petition the Congress to change these laws—both to make them less stringent and to make them more so. I will go so far as to say that those who wish the law were other than what it is have an affirmative civic duty to petition the Congress and otherwise campaign for whatever changes to the law they wish to see enacted.
This is the reality of those who enter the US illegally and attempt to remain in the US in defiance of these laws: they are, by their actions, demanding a nullification of these laws. Those who facilitate illegal entry are, by their actions, demanding a nullification of these laws.
While there is within libertarian thought a tendency to support the concept of nullification, and certainly even John Locke in his Two Treatises on Government12 articulated the principle that the individual of his own volition withdraw his consent to be governed, for nullification to stand as a matter of civic policy it must be defensible to the larger civic society.
Can we defend, as a matter of policy, allowing the illegal alien to defy the law without consequence?
If we do, we are inviting lawlessness, for we are saying the law has no meaning. Worse, we are inviting the chaos of saying ad hoc that some laws should be obeyed and other laws should be ignored.
Are we prepared to live in that sort of society? Are we willing to live in that sort of society?
Can we defend, as a matter of policy, rewarding the illegal alien by granting their offspring the citizenship the legal immigrant strives often for years to achieve simply by virtue of being born within the territory of the United States?
If we do, we are in effect saying there is no virtue in obeying the law. Worse, we are making a mockery of the efforts of legal immigrants who work in good faith to achieve citizenship in the manner prescribed by law, regardless of whether that manner is fit or fair.
Are we prepared to casually dismiss and demean people thus?
Can we defend, as a matter of policy, making the offspring of illegal aliens citizens, and thus ineligible for deportation, while at the same time deporting their illegal alien parents?
If we do, we are institutionalizing family separation. Conversely, if we reject family separation while granting the offspring of illegal aliens citizenship, we nullify very nearly the whole of immigration law, and the Congress’ Constitutional authority to enact immigration law.
Are we prepared to either institutionalize family cruelty on the one hand, or anarchy on the other?
Unless and until we are as a society prepared to accept the consequences of the blithe tolerance of illegal immigration, we do our society no favors by granting to illegal aliens the capacity to endow their offspring with citizenship.
Citizenship is not a fundamental right, and we should not make the mistake of treating it as one.
Ponce OJ, Alvarez-Villalobos N, Shah R, et al, “What does expert opinion in guidelines mean? a meta-epidemiological study”. BMJ Evidence-Based Medicine 2017;22:164-169.
Harrington, B. The Citizenship Clause and “Birthright Citizenship”: A Brief Legal Overview. Congressional Research Service, 2018, https://sgp.fas.org/crs/misc/LSB10214.pdf.
Elk v. Wilkins, 112 U.S. 94 (1884)
United States v. Wong Kim Ark, 169 U.S. 649 (1898)
Indian Citizenship Act of 1924, (43 Stat. 253)
"Enemy alien." Collins Dictionary of Law. 2006. W.J. Stewart 22 Jan. 2025 https://legal-dictionary.thefreedictionary.com/Enemy+alien
Plyler v. Doe, 457 U.S. 202 (1982)
Locke, John. Two Treatises Of Government. Project Gutenberg, 1690/December 25, 2021, https://www.gutenberg.org/files/7370/7370-h/7370-h.htm
Bravo Peter - one of your most brilliant! Just as I read a paragraph and think, “I can’t possibly become more impressed by this man”, you upstage yourself with your next bit of perfect reasoning, then your next, and your next.
Okay, the Supreme Court needs to address and clarify a whole slew of words, phrases, paragraphs, and concepts pertaining to the Fourteenth Amendment. This will have a ripple effect of one can of worms opening after another, but it’s got to be done - and done as objectively and apolitically as possible. For example, the phrase “ in conflict with” - does this mean a Constitutionally-valid war declared by Congress? Or just any policy-based disagreement with another country? They need to nail this down, as specifically as possible.
Clarifying all of these may mean they will also need to revisit previous Court rulings. Would it result in, for example, rulings pertaining to tribal vs US matters for Native Americans? They aren’t going to want to tackle this, but that may be the ripple effect.
I always love your wit, Peter. “CNN, the Most Busted Name in Fake News” - heh, heh, heh. And your subtlety: “This is a sweeping generalization that is, like all generalizations, fundamentally false.” My God, I adore you!
"but for affirming that fundamental rights are not conditioned upon citizenship."
We should avoid the term "fundamental" right as it (by design) conflates those granted by the state and those endowed by our Creator. Citizenship comes from We the People via our government. The rights of freedom of speech and due process come from our Creator. For illegal aliens, due process means being quickly and respectfully repatriated to their home nations.