Birthright Citizenship is a Fake Debate

It is clearly intended by the 14th Amendment and there is no counterargument.

May 09, 2025

Hey everyone. This is the Birthright Citizenship Jackal.™ Oral arguments are next week and I have done some work on this for amici who filed a brief at the Supreme Court. It has been a long slog, but it’s here.

If you have read the Jackal for a while, you’ll know that when it comes to legal stuff, I try to keep a cool head. When Donald Trump’s potential disqualification came up surrounding the 14th Amendment, I entertained both sides and more or less predicted SCOTUS was likely to say Trump wasn’t barred. It was a fun, interesting case. Also, does anyone remember the Great Chevron Freakout of 2024? That didn’t happen here and I think it’s safe to say it wasn’t warranted.

In law, there are always going to be people arguing about what words mean, and sometimes the best argument is simply the one that is the most persuasive, not the one steeped in American history. You persuade people with words, after all, and words have to be easy to understand. All that to say, in a lot of cases that appear before SCOTUS, you will probably hear me say that either side has a valid, or at least good faith argument.

But that is not really the case here. Having read about this for years and then doing a re-read over the past few weeks, I have to say it is incredibly clear to me that (1) birthright citizenship has always been present in the United States, (2) the 14th Amendment explicitly enshrined that right and gave it to black Americans, and (3) the legal status of the parents of anyone born here doesn’t matter. It is similarly clear to me that all of this was intended by the drafters of the 14th Amendment.

I’ll be direct: I think anyone arguing against these three points is doing so in bad faith. The Constitution does not support any other interpretation. I think anyone suggesting otherwise mostly wants to keep non-white people from acquiring citizenship and are using this argument as a Trojan horse to accomplish their policy goals.1

Does that mean birthright citizenship is good policy? Does it mean that it should remain in place forever? I won’t even attempt to answer those questions, but I know what the remedy is if you are inclined to answer in the negative: Amend the Constitution. Yes, that process is long and seems almost impossible right now, but it was intended to be long, a lot like this Jackal. Let’s get crackin’.

There is an inherent truth about the Constitution that contributes to its greatness: It is written to be easy to understand, even for the layperson. It is not a lawyerly document and it is fundamentally different from the laws passed by Congress, primarily because the average person is supposed to be able to understand its plain language.

There are no tricks. There are no hidden meanings. That is why the 14th Amendment clearly bestows citizenship to any person born in the United States, even if their parents aren’t citizens.

Fun fact: This photo inspired me to clean my laptop.

Before we dive in I wanted to give you some of my own background on the subject. One of my favorite characters in American political history is a guy named Roscoe Conkling.

Conkling was a Senator from New York in the mid to late 1800s, and was a member of the Radical Republicans during the Reconstruction era. He was vehemently opposed to slavery and supported giving black Americans the right to vote.

He was also a psycho. He was the personal bodyguard of Charles Sumner - who was infamously caned on the Senate floor - and was such a well-known philanderer that a dude who suspected his son was the product of an affair named his kiddo “Roscoe,” theorizing that the child should be named after his “real” Dad. Insane. Conkling was also rumored to have been caught with a colleague’s wife, which resulted in him being chased out of the house with a shotgun.

During the Great Blizzard of 1888, Conkling opted to walk from his law office in the Financial District of Manhattan, all the way to his home in Madison Square Park. He got about as far as Union Square before he collapsed, which ultimately led to his death a few days later. (There are worse ways to go out.)

If you have ever played video games with me on Xbox Live, you’ll know that he is my gamertag (I just doxxed myself). I like him that much. I was in my early 20s when I saw his statue in Madison Square Park while I was waiting on line2 (for almost two hours) to eat at a hip new burger joint called Shake Shack at their only location. I’ve been fascinated with him ever since.

But most importantly, Conkling is one of the drafters of the 14th Amendment. And what we will see below is that his colleagues absolutely intended for the Birthright Clause within it to bestow citizenship to people who are born here, without regard to the legal status of their parents. It is as clear as day. There is no counterargument.

And yet there is a President who is seeking to undo it. As I mentioned above, Conkling was a Radical Republican, and when I was a young conservative in college, I loved that history; it truly made me proud. Today, a Republican President is seeking to undo one of the Party’s greatest achievements. I won’t have time to go into it, but the change in Party politics is also a massive, massive part of this story.

All this talk about college makes me want to do an outline.

(Another) Mini Intro.
The words of the 14th Amendment are clear.
1. The textualist case for Birthright Citizenship.
The intent of the 14th Amendment is clear.
1. The originalist case for Birthright Citizenship.
The Constitution as a whole supports Birthright Citizenship.
Predictions.

Before we get into the piece I want to give you some definitions. I write above in the outline that there is both a “textualist” and “originalist” argument for birthright citizenship.

First, originalism is a judicial philosophy that basically says the authors of the Constitution - be it the Founders or anyone else - clearly had an intent behind their words and we should respect that intent. The original meaning of the text in question is almost always paramount. Originalism is usually positioned as an opposing force to “living constitutionalism,”3 which is closer to England’s interpretation of “common law.” It basically says the Constitution is more of a guide and we should not hold ourselves to the intentions of men from the 1800s, who would probably die if they ate a bag of Doritos.

A textualist, on the other hand, is an originalist’s cousin. They basically argue that we should simply go by what the words say and not worry too much about intent, because that has us diving through Congressional records and reading minds rather than just the text itself. Sometimes their arguments overlap (Antonin Scalia was a famous originalist and a textualist), but they are certainly different.

I think there is an argument for birthright citizenship from both a textualist and originalist ground, two philosophies long-associated with conservative judicial theory.

Second, birthright citizenship has been present in America since the founding. In Lynch v. Clarke, a New York court addressed this issue and said:

“[B] the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen. . . . The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. The only standard which then existed . . . was the rule of the common law, and no different standard has been adopted since (my emphasis).

The Lynch opinion came down in 1844, fifty-seven years after the Constitution was adopted. While that’s not quite contemporary with the Founding Fathers (James Madison was the last one to die in 1836), it does capture an inherent principle that they believed in: Jus soli, meaning “right of the soil,” i.e., Birthright Citizenship™.

It sounds great, but this is the part of the SNL skit where Keenan Thompson says, “Where all men are free, right?” The Founders believed in jus soli, but weren’t sure about what to do with black Americans. After all, they were born here but a hefty chunk of the country was pretty sure they could not become citizens. Then, in Dred Scott v. Sandford, the Supreme Court said exactly that: Black Americans - even those who were born here - could never become citizens because the Constitution did not intend for them to participate in birthright citizenship. The 14th Amendment (what the Trump Administration is relying upon to make their argument) was then drafted and ratified to address this issue.

The 14th Amendment says what it says.

If we are going to get into the 14th Amendment itself, then we should at least read what it says.

The first sentence of the 14th Amendment makes it clear: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

It is actually crystal clear, apart from one phrase: “…subject to the jurisdiction thereof.” If you take out that phrase, the Amendment literally reads, “All persons born or naturalized in the United States are citizens of the United States.” As we’ll read below, the original intent of the Amendment was to solidify what was already understood in American law. But the jurisdiction phrase is only a limited qualifier that does not (and has never) barred birthright citizenship.

The history behind that phrase is actually pretty simple. The drafters of the 14th Amendment wanted to ensure that the children of foreign diplomats would not immediately obtain citizenship, and this was done to satisfy both the United States and the diplomats from foreign countries who had their families with them. People who work at embassies are - by definition - not subject to the jurisdiction of the United States government. In fact, an embassy (or consulate) is usually seen as a little “floating island” belonging to the country stationed within it. So, the Estonian embassy is a little piece of Estonia and the Ugandan embassy is a little piece of Uganda; the U.S. does not have control over what happens inside of them. We’ll read more about this below when it comes to the “Indian Territories,” but this clause was added to protect people from foreign nations who were only here on official business for their state. So, the goal of this stipulation in the Amendment was to allow for the children of foreign diplomats to remain citizens of their parents’ host country and not become “subjects” of the United States.4

That’s what the clause means. It does not apply to anything else, and it was not intended to, but people are still spinning it 159 years later. Think of the argument you’d have to embrace if you were trying to say that the jurisdiction clause did not apply to children born in the United States, even to parents of undocumented immigrants. Let’s go through a scenario:

A husband and a wife from Mexico, David and Elisabeth, flee to the United States and illegally cross into Texas.
They don’t like Texas and move to Colorado.
They have a daughter there, Oprah.
They avoid deportation for years and get a temporary status that is sort of unclear, but it allows them to stay in the country for years.
Eventually, they are deported but Oprah wants to stay with relatives and friends in the U.S.
Oprah is not a citizen, because her parents were not in the U.S. legally when she was born. It is not even clear if she is a citizen of Mexico.
Here is the most important part: Oprah cannot be deported because (according to the Trump Administration) she is not subject to the jurisdiction of the United States.

This also means that Oprah could not have been arrested at any time: Because she is not subject to the jurisdiction of the United States, she is similar to the child of an Ambassador from Mexico. The jurisdiction clause is meant to highlight that the U.S. has power over the people born in its territory. If you get the protection of the state, you also need to abide by the state’s laws; that is deal. By undoing this, the Trump Administration is inadvertently creating its own class of sovereign citizens: People who are stateless and cannot even be prosecuted for deportation.

There is a saying in law: Elephants don’t hide in mouse holes. If the drafters of the 14th Amendment intended for this to be the interpretation of the Amendment, they would have said so. And I can tell you right now: I poured through the Congressional Globe in the years following the ratification of the 14th Amendment. Do you know how many times Senators said that birthright citizenship should be conditional, based on the status of the child’s parents? Exactly zero times.

The 14th Amendment intends to grant citizenship to any person born in this country.

I have heard a lot of people who are opposed to birthright citizenship say the same thing: “It had to be an accident and it wasn’t intended by the people who drafted the Amendment.”

If you know me in person, there is a thing I say frequently: We have a hard time processing the sophistication of people who came before us. Were they racist sometimes? Yep. Did they use leeches as a medical cure? Yes.5 But it was mostly the laypeople who thought drinking lots of moonshine could cure chicken pox. And our parents were alive when doctors were telling us cigarettes were good for you! The laypeople always believe crazy things.

But the people in Congress were intelligent. Some of them were still racist (we’ll see that below), but they were sophisticated enough to consider the intentions of the 14th Amendment. Luckily, we have a full catalog of their debates that shows us their thought process. Here is what Senator Jacob M. Howard of Michigan (Go Blue) said during the ratification:

You can see that he lays out what we said above: The common law of the United States was understood to be citizenship upon birth, and that the 14th Amendment was making an exclusion for people who were born to foreign ministers and ambassadors. Pretty simple.

Later on, one of Howard’s buddies jumps in and says, “Whoa, I hope you don’t mean the Indians.”

Like I said, just a smidge racist. But Howard’s response is instructive, because it lays out what his intention is behind the jurisdiction clause: The Indians operating out of and still loyal to their territories are “quasi foreign nations.” This is consistent with the carveout for the children of ambassadors.

Then Senator Edgar Cowan from Pennsylvania jumps in and cuts right to the chase: He goes on a long rant and basically says, “Do you guys know what you’re doing? This means that the Chinese, Mongols, and gypsies who are coming to the country will have legal kids here who are citizens. Does that seem like a good idea?”

Cowan’s rant is long (and ick), so I’ll only cite to some of it:

A little later on, Cowan also suggests that people from Australia could come here and engage in cannibalism, because that’s just what they do. If he only knew 159 years later the Australians would be best known for exporting adorable cartoon dogs, enjoyed by children everywhere.

But Cowan’s language is illuminating. He is not making an argument for some different interpretation of the amendment or alternative explanation; he is trying to warn his colleagues. He is basically espousing the Great Replacement Theory, and saying, “Do you guys understand what you’re doing?” He says that his state is potentially being overrun by gypsies6 (seriously), and they could simply repopulate and take over.

This is important for two reasons:

Cowan’s language shows that everyone understood that the 14th Amendment enshrined birthright citizenship, no matter the legal (or citizenship) status of a child’s parents.
Cowan’s colleagues all unequivocally say: “Yes, we understand what this means and we’re doing it.”

Here is Cowan’s buddy, Senator John Conness (who rips into him for bashing “gypsies”):

Conness says it right there: “Here is a simple declaration that a score or a few score of human beings born in the United States shall be regarded as citizens of the United States.” He hears Cown’s concerns and says they don’t matter. And he says anyone opposed to that and who claims to have a “high humanity” is a liar. Cowan says nothing after that (they literally begin discussing potential typos in the Amendment).

Any person who tries to argue that the Senators did not intend for birthright citizenship to be granted to people born here is lying to you. They did. They also didn’t create certain sub-classes of people who didn’t get citizenship and others who did.

It was fully intended by the drafters of the 14th Amendment and they ratified it without changing the language. And importantly, they viewed it as the moral thing to do.

Maybe you are thinking they did not have the illegal immigration problem that we have today, and immigration was so different (and easier) back then that the 14th Amendment couldn’t have been applied in the way we see it applied today.

First off, a large portion of the Chinese laborers in California (mentioned by the Senators cited above) were present in the U.S. without legal status, and - importantly - could never obtain citizenship by law. The Senators said explicitly that - despite this - their kids got citizenship. But there was also a huge, almost incalculable number of illegal “immigrants” (and their offspring) in the country at the time: Black Americans. After the slave trade was made illegal in 1807, millions of slaves still poured into the United States in contravention of that law for the next few decades. Those slaves had come to the U.S. illegally and had children there and millions of those children had grown up, living in the United States without formal legal status. The 14th Amendment granted citizenship to all of these people and the members of Congress knew that it would. They knew that the 14th Amendment had to disregard the legal “immigration” status of a child’s parents because there is no other way it could work.

The Constitution as a whole supports birthright citizenship.

The law professors are going to go after me for this one: The Constitution addresses a myriad of issues, so it’s impossible to say that it supports birthright citizenship “as a whole.” But it’s my blog and I’m gonna say it.

America was founded as a different country than others. We are a country where it isn’t your blood that matters, but we believe that people are born here inherently free. They are free from oppression but they are also free of the bounds of their ancestors. During the ratification of the 14th Amendment, Britain was still practicing jus soli (they now require one parent to be a citizen for it to pass on to the child), but they did it because they wanted the king to have more subjects. There were people back then who literally tried to emancipate themselves from Britain and Britain said no.

America took jus soli and flipped it on its head. They did take the original meaning from within English common law, but said that your birthright didn’t make you loyal to a king. We say your birth grants you freedom in and of itself, and it has nothing to do with the status of your parents. It is about the child.

The Constitution doesn’t assign rights but it instead recognizes ones that already exist and then limits government from infringing on those. I have seen an argument floating around recently that says illegal immigrants in this country are not entitled to due process because that is only for citizens. This is Con Law 101, but it is explicitly false: The 14th Amendment, the 5th Amendment, etc., all purposefully use the term “persons,” because in America we recognize the human dignity of the person without considering their legal status. Or, at least we try to. Sometimes, we have Administrations like the current one.

One final thing: I think Cowan’s words above are so instructive, because he goes on a long, Tucker Carlson-esque rant about how gypsies are overrunning Pennsylvania and how they are dirty and only marry their own kind. He was all freaked out, but currently no one in America considers gypsies a problem (except literally Tucker Carlson).

We have gone through iterations of this all throughout history: The gypsies are coming to destroy America. The Chinese are coming to destroy America. The Irish are coming to destroy America. The Italians are coming to destroy America. And now the Hispanics from Central and South America are coming to destroy America. It’s the same thing, over and over again. As Cowan shows us, there is always going to be a nativist wing in this country. The important thing to remember is that they are always wrong.

Predictions.

Technically, the argument that SCOTUS is considering next week is more narrow than what I laid out in this piece, but lots of people are expecting them to address the broader issue. The Supreme Court upheld birthright citizenship (again, without regard to the legal status of a child’s parents) in United States v. Wong Kim Ark.7 But that was in 1897. We had another update on that in Plyer v. Doe, which found that the children of illegal immigrants had a right to public education. But that is also an older case, decided in 1982.

Maybe we need an update, or maybe SCOTUS wants to resolve the small issue that is in front of it. But I have a hard time understanding why they would take this case up unless they wanted to mess with something. I have been told by a ton of people in the legal world that there is no universe where SCOTUS agrees with Trump, but I have seen this movie before and now he has sweeping immunity to protect him.

Something is up. But if SCOTUS decides to upend over 150 years of legal understanding, it will be an explosion I don’t think they are ready for. The Ronald Reagan-appointed judge who heard the first challenge to Trump’s executive order said he had “difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order.” He called it, “blatantly unconstitutional.”

I agree with him. Most legal scholars (liberal and conservative) do too. But this SCOTUS comes through for Trump when it really matters. I hope I’m wrong.