In the last piece I wrote about this issue, I offered my conclusions about the legal arguments that are being made, and about how the Supreme Court will ultimately rule. I am convinced that birthright citizenship will survive, meaning that a baby born on American soil (with very few exceptions), will continue to be, automatically, an American citizen. It will not be a close decision. I would bet money that at least seven justices will reject the arguments from Trump, his MAGA lawyers, and the various pro-Trump media pundits currently howling about the babies of illegal immigrants and how outrageous it is that, under our law, they are Americans.
Following further research, I have found more legal ammo to support the pro-birthright position. In addition, I will discuss the matter from a policy perspective (something I didn’t do in the last article). I’m convinced that getting rid of birthright citizenship is not only legally wrong, it’s also a dumb idea.
The major problem facing those who would deny citizenship to babies born in the U.S. to illegals is the first sentence of the Fourteenth Amendment:
“All persons born…in the United States,
and subject to the jurisdiction thereof,
are citizens of the United States….”
I have seen attempts to construct an argument that the babies are not “subject to the jurisdiction” of the U.S., but these never seem to get very far. Ask them why the kid would not be subject to our jurisdiction, and they tend to wander off and start talking about the parents and whose jurisdiction the parents are subject to. The country of their origin, supposedly—Guatemala or someplace. But what does that have to do with the kid? Nothing.
Then, they move on to the original purpose of the Fourteenth Amendment, which was ratified in 1868, and there is no question the motivation for it was the Civil War and the desire to make it clear once and for all that the black slaves of America were no longer slaves and never would be again. The opponents of birthright citizenship then argue that it was only about slaves and former slaves, and should never have been used to make the babies of illegal aliens citizens.
This argument cannot be tossed aside completely because there is some legal reasoning behind it.
When courts are trying to interpret the meaning of a law or a regulation or a Constitutional provision that was enacted many years before, one of the things they will look at (sometimes), is what the rule or law was originally intended to cover. What is most important is the plain meaning of the words at the time they were written into law, and only when there is some uncertainty about that will the court try to look into the minds of the legislators who voted on the law and figure out what they meant. That sort of analysis can happen. Here, however, “persons…born in the United States” means persons born in the United States. It is not at all ambiguous, and it means the same thing in 2025 as it did in 1868.
And there is another nail to be hammered into this coffin. The argument that the Fourteenth Amendment was only intended to cover America’s black slaves has already been rejected many times when that argument was made about the Thirteenth Amendment, which banned slavery throughout the United States. It states:
“Neither slavery nor involuntary servitude…
shall exist within the United States, or
any place subject to their jurisdiction.”
The Thirteenth Amendment was signed by Lincoln in 1865 and ratified later that year. Lincoln’s intent was to wipe out slavery, and he feared that his Emancipation Proclamation (the equivalent of an Executive Order today) could be reversed by a future president.
There is no question that the sole purpose of the Thirteenth Amendment was to ban the chattel slavery that had given rise to the Civil War. However, it has been repeatedly used to fight other forms of slavery and involuntary servitude that had no relation to the plight of black slaves in the South.
As early as 1872, in The Slaughterhouse Cases, the Supreme Court wrote about the reach of the Thirteenth Amendment:
“We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent.” 83 U.S. 36, at 72 (1872).
In 1905, the case of Clyatt v. U.S. ruled that peonage laws (which ban a form of debt-servitude), were allowed under the Constitution because they are outlawed by the slavery provision of the Thirteenth Amendment, even though the practice of peonage had nothing to do with race.
More recently, the Thirteenth has been used to ban sex trafficking.
In other words, though the motivation for the Thirteenth Amendment’s ban on slavery was the ownership of black people in the antebellum South, the law was never going to be limited to black people. Its plain language (banning all slavery), would prevail.
Therefore, there is no good reason why the plain language of the Fourteenth Amendment should not prevail as well.
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And then there are the policy arguments. The only ones you hear (or maybe the only ones I hear), are from those who want to end birthright citizenship. You have heard it too: "They sneak into this country illegally and they have a baby and suddenly the baby is a citizen here! WTF???”
But there is an argument on the other side.
There are two major categories of citizenship laws. Blood citizenship (jus sanguinis) provides legal citizenship to those who can trace their ancestry to existing citizens. If your parents or grandparents were German citizens, you too are a German citizen. This system is the basic law throughout Europe, Asia and Africa.
Birthright citizenship (also called jus soli), is what we have almost everywhere in North and South America, and this “law of the soil” has little to do with your ancestors. If you are born in Rio, you are Brazilian. If you are born in Billings, Montana, you are an American.
Historically, it’s not surprising. Europe was composed of hundreds of tiny principalities and duchies and city-states and kingdoms and ethnic/language groups that were constantly invading each other. If you were French, you might be able to trust other French people, but the Germans? Well, that was another story.
In the New World, none of those old rivalries and hatreds mattered quite as much. For one thing, there was no such thing as an American until about 300 years ago, or a Guatemalan, or a Chilean, so the ancient conflicts didn’t exist. Also, the new lands were hungry for people, so if you and your family showed up and started growing crops and hunting deer, nobody was going to question your bona fides. “You wanna be a ‘citizen?’ OK, you’re a citizen.”
The situation in America today is not what it was in 1700, but is it so terribly different? Unlike “French” or “Greek,” “American” was never an ethnic group or a genetic identity, and it still isn’t. Being American has never been primarily about who your daddy was, but about accepting a certain collection of ideas about government and liberty and law, and these ideas remain the reason why people from all over the world want to come here. Also, it is not lost on impoverished people from all over the world that you can actually become an American if you move here, learn some English, get a job, and pick an NFL team. You can become an American in a matter of weeks. And yes, maybe you can better yourself in Italy too, but you will never be an Italian.
And neither will your kids, or your kids’ kids. It’s extremely unlikely you or your kids or your kids’ kids will ever get to vote, or run for Mayor, or be a full-fledged member of the community in a country with blood citizenship. That’s what blood citizenship means. That’s the system Trump and his supporters want to impose on America.
It used to be nearly impossible to become a naturalized citizen in Europe. It’s possible now, with a combination of time, language classes, employment, income, and passing tests, but it’s still not easy. And it’s a problem. There are people living in Germany who are not citizens even though their family has lived there for generations. As a result, they are never fully integrated into their society, and they are not viewed as “German” by their neighbors.
The problem has only gotten worse with the influx of millions of Arabs and Africans. Almost none are citizens and there is almost no chance they will become citizens. One result is that most live in enclaves and make little attempt to integrate into the country where they reside. Many see little reason to abide by the laws or customs, and they often do not recognize the police or local authorities as having any legitimacy over them. If birthright citizenship is ended in the United States, we would face a similar situation here, with tens of millions of mostly-Latino immigrants having no possible path to connecting with America and seeing no possible path for their children or grandchildren either.
And finally, there is one more aspect of blood citizenship I find disturbing and unacceptable. Countries under a system of blood citizenship must maintain a vast collection of genealogical records on the ethnic backgrounds and race of their people, and that is information that I don’t want any goddam government to have. In the 1930s, of course, this data was very helpful to the German authorities who wanted to know just who the “real Germans” were.
Copyright2025MichaelKubacki
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