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THE 5 WORDS THAT WILL DETERMINE THE FATE OF BIRTHRIGHT CITIZENSHIP  
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Bill Blum
December 22, 2025
Truthdig
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_ A nativist theory from the lunatic fringe has been revived and
given a sloppy originalist makeover for Supreme Court approval. _

Hannah Liu, 26, of Washington, holds a sign in support of birthright
citizenship outside the Supreme Court in Washington on May 15, 2025. ,
AP Photo

 

_“When I use a word,“ Humpty Dumpty said in rather a scornful
tone, “it means just what I choose it to mean — neither more nor
less._“— Lewis Carroll, “Through the Looking Glass
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When Donald Trump [[link removed]] signed
Executive Order 14160
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20, declaring an end to birthright citizenship under the 14th
Amendment for the children of undocumented aliens, constitutional
scholars
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laughed at him
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They had also laughed in 2018
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when he first threatened, but ultimately declined, to issue the
decree. The idea that a president could gut a constitutional right by
personal fiat seemed too crazy, too culled straight from the lunatic
fringe, if not the imagination of Lewis Carroll, to actually happen. 

No one is laughing anymore. On Dec. 5
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the Supreme Court granted the administration’s request to review the
order’s constitutionality, marking the second time
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year the panel has agreed to examine the birthright edict. Back in
June, courtesy of a 6-3 majority opinion written by Amy Coney Barrett,
the court lifted three nationwide “universal” preliminary
injunctions
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by three different federal district court judges that had blocked the
order from taking effect anywhere in the country. 

Barrett’s opinion was messy
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and complicated, but procedural in nature. It did not address the
underlying legality of the birthright order, but instead offered a
hodgepodge of textualist and originalist analysis to make it more
difficult for district courts to issue nationwide injunctions. In
response, immigrant-rights advocates across the country restyled their
legal challenges and secured new injunctions
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against the birthright order, forcing Trump’s Justice Department to
appeal once again to its friends on the nation’s highest tribunal. 

The new case before the court, Trump v. Barbara
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class action launched by the ACLU and other organizations on behalf of
all babies born in the U.S. who are or would be denied citizenship by
Trump’s order. Both sides in the litigation agree that this time the
court will have no wiggle room to dodge the fundamental question of
whether the birthright order violates the 14th Amendment’s
Citizenship Clause, which provides: “All persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein
they reside.” 

In his petition to the court, Trump’s solicitor general, D. John
Sauer, argued that the clause was adopted to overturn the case of Dred
Scott v. Sandford
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and grant citizenship to newly freed slaves and their children, but
not to the children of temporary visitors or illegal aliens. In
Sauer’s view, the key to unlocking both the text and original
meaning of the clause turns on the five words — “subject to the
jurisdiction thereof” — which he insists confirm that the clause
was crafted “to extend to children who are ‘completely subject’
to the ‘political jurisdiction’ of the United States, meaning that
they owe ‘direct and immediate allegiance’ to the Nation and may
claim its protection.” 

The children of undocumented aliens fail the test, Sauer contended,
because their parents owe allegiance to their native countries. The
rights and loyalties of the children, separate and apart from their
parents, are entirely discounted, creating a caste-based system
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that binds the legal status of children to the status of their
parents.  

There are a great many things both notable and deeply wrong with
Sauer’s argument, but a few stand out like sore jurisprudential
thumbs. First, the argument is essentially a rehash of the nativist
dissenting opinion in the Supreme Court’s 1898 landmark decision on
birthright in the case of United States v. Wong Kim Ark,_ _which
recognized the citizenship of a man born in the U.S. to parents who at
the time were subjects of the Chinese emperor but lived in California.
Written by Chief Justice Melville Fuller, a staunch Gilded Age
conservative and defender of laissez-faire capitalism, the dissent
urged the full court to reject the doctrine of _jus soli_
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soil’’) — the principle that all those born within the
geographic boundaries of a nation are citizens at birth — that the
American republic had inherited from English common Law. Fuller’s
overtures were rejected by a 6-2 majority. Sauer is making the same
discredited argument in 2025. And, contrary to Trump’s oft-repeated
rants
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more than 30 countries
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to recognize the _jus soli_ doctrine, including the United States,
Canada and Mexico. (Great Britain modified its nationality law
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1981.)

Second, from a strictly textualist perspective, Sauer’s argument
fails because there is no language in the Citizenship Clause requiring
immigrants to pledge complete and undivided allegiance to the U.S. to
secure citizenship for their U.S.-born children. By the plain meaning
of its terms, the clause extends to _children_ born in the country. It
says nothing about their parents. 

Third, Sauer’s argument comes up short on originalism in what should
be a fatal blow, given the extreme lengths the current Supreme Court
has gone to embrace originalism as a kind of legal
theology. Today’s originalists focus on the “original public
meaning
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the Constitution and its amendments, which they contend can be
ascertained from the recorded debates of the framers and other sources
such as widely available dictionaries. So, what was the original
public meaning of the phrase “subject to the jurisdiction
thereof”? The answer is no mystery. As University of San Diego Law
School professor Michael Ramsey, a leading authority on the clause,
has explained
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when the framers of the 14th Amendment inserted the phrase into the
Citizenship Clause, they chose one with a well-defined meaning,

In 19th century language, a nation’s “jurisdiction” meant its
sovereign authority. The 1865 edition of Webster’s Dictionary
defined jurisdiction of nations as the “power of governing or
legislating,” “the power or right of exercising authority,” the
“limit within which power may be exercised,” or “extent of power
or authority.” The phrase “subject to the jurisdiction” of a
nation meant under that nation’s sovereign authority. The 19th
century idea of territorial sovereignty made everyone within sovereign
territory subject to sovereign authority, except those with
jurisdictional immunities such as diplomats.

Ramsey’s reading of the 14th Amendment is consistent with the
debates of Congress on the amendment. While repudiating Dred
Scott was the immediate impetus for the Citizenship Clause, the
Senate and the House debates
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1866 extended far beyond that notorious decision.

The clause was introduced in the Senate by Jacob Howard of Michigan on
May 30, 1866, as an add-on to the draft of the 14th Amendment
formulated by the House. The clause tracked similar language contained
in the Civil Rights Act of 1866
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the principles of _jus soli_. In his introductory remarks, Howard
noted that the words “subject to the jurisdiction” of the United
States meant that the Citizenship Clause would not apply to the
children of ambassadors or foreign ministers, the children of
occupying foreign soldiers or to the offspring of Native Americans who
claimed allegiance to tribal governments, but that the clause would
“include every other class of person,” regardless of race or
descent. The clause, Howard said, “settles the great question of
citizenship and removes all doubt as to what persons are or are not
citizens of the United States.” 

Fourth, and most critically, Sauer’s argument, if accepted by the
Supreme Court, would have devastating practical effects. Over 250,000
babies are born every year in the U.S. to parents of undocumented
aliens or temporary visitors, according to the Migration Policy
Institute and Penn State University’s Population Research Institute
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Depriving them of citizenship will condemn them to lives of poverty
and the constant threat of deportation. Some may even be rendered
stateless
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There is no telling how the Supreme Court, now firmly controlled by
six reactionary Republican justices, will rule. After the court gave
Trump wholesale immunity from criminal prosecution last year in a case
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be taken off the table.

_Bill Blum is a Los Angeles lawyer and a former state of California
administrative law judge._

* birthright citizenship
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* Trump
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* Supreme Court
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* ACLU
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