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A few weeks ago, Trump signed an executive order attempting to end birthright citizenship; it is currently working its way through the courts. Some users here claimed that the 14th amendment "obviously" implies birthright citizenship. I disagree, but wanted to take the time for a long from explanation. First, the relevant text:
The question, now, is who is subject to jurisdiction. It cant just be everyone, because then why would they write it, and besides there are known exceptions made on this basis, notably foreign diplomats, invading armies, and (formerly) indians. Of these, I want to look at invading armies in particular. Why are they not subject to jurisdiction?
The common answer seems to be that, since they control the territory, they have the jurisdiction rather than the US. But does the US accept that it doesnt have jurisdiction? No. After the invader is expelled, they likely have the right collect the outstanding tax from the time they were unable to collect. Crimes under US law that occured during that time can also be prosecuted (though it may be an extenuating circumstance where relevant).
Now, you might try to solve this by requiring defacto jurisdiction. The problem is that you then have to explain how the defacto failure to immediately reoccupy territory is different from the defacto failure to immediately apprehend any criminal whatsoever. This sounds quite weird and not like something they would have meant, and also every illegal immigrant is a fugitive criminal, because he violates immigration law. And it also seems that the invasion exception applies to the invaders, rather than every non-citizen in the territory.
A more promising approach might be to notice that the way the government treats illegal immigrants is a lot like how it treats enemy soldiers: Where safely possible, they are caught alive. They can then be prosecuted for any crimes committed in the US (unless responsibility goes up the command chain), and are eventually sent back home (when there is no danger that this will help the enemy anymore). This suggests that jurisdiction applies to them in a similar way, and reasoning for an exemption is likely to transfer. Indeed, one of the simplest descriptions of an invasion is "People coming into the country that the government doesnt want to". Subjecting people to jurisdiction requires activity of the government, and it seems quite sensible that someone refused entry is also refused jurisdiction. I think thats more plausible than such a refusal requiring jurisdiction, but even if you disagree, its at least a binary choice rather than having to find some complicated new distinction.
Is this a motivated reading? While it has some complexity to it, I dont see a way to accommodate the invasion exception without that. I think this is the most plausible way to resolve that. A reading which doesnt make the invasion exception may also be reasonable, depending on judicial philosophy, but if thats what the people calling it "obvious" meant, they should indicate that theyre defending something other than the status quo. In conclusion, I think children of illegal immigrants do not necessarily have citizenship, those of temporary residents (also targeted in the EO) do.
...is what I would have written, if I didnt remember that the US actually claims universal jurisdiction for some of its laws. This doesnt make everyone a US citizen, because there is the territory requirement in the text, but it potentially outflanks the exceptions, and under my above reading all of them would be invalid. Admittedly I dont think SCOTUS will take this line seriously - theyre too practical for that, and if they just really want to keep children of illegals theres plenty of bad arguments to use that sound more normal. And actually, theres a wrinkle in the wrinkle, because one of the laws with universal jurisdiction was passed before the 14th ammendment, and so actually maybe you should make the traditional exceptions work even under universal jurisdiction (depending on judicial philosophy). I think the universal reading of that law is bullshit, but it has precedent.
EDIT: Since noone seems to take into account the last paragraph: My final conclusion is that all the exceptions are gone.
John Eastman goes into the the types of jurisdiction and birthright citizenship in this interview: https://rumble.com/v6me54x-sidebar-with-john-eastman-birthright-citizenship-executive-order-lawfare-an.html?start=936
Unfortunately there's no transcript I'm aware of.
I won't vouch for the accuracy; Grok produced this transcript
[15:36] David: Alright, let’s shift gears a little bit here. One of the big things that came out of the first day of the Trump administration was the executive order on birthright citizenship. This has been a hot topic for a long time, especially in conservative circles. John, you’ve written extensively about this. Can you break down what this executive order does and why you think it’s legally sound?
John: Sure, David. First off, let me say this is something we’ve been pushing for years—decades, really—at the Claremont Institute and elsewhere. The executive order Trump signed on day one basically says that children born in the U.S. to parents who are here illegally, or even on temporary visas, aren’t automatically citizens. It’s directing federal agencies to stop issuing citizenship documents—like passports or Social Security numbers—to those kids unless at least one parent is a citizen or a lawful permanent resident.
Now, the legal basis here hinges on the 14th Amendment, specifically the Citizenship Clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” The key phrase is “subject to the jurisdiction thereof.” For over a century, the courts—and most scholars—have read that broadly, saying if you’re born here, you’re a citizen, period. Except for, you know, diplomats’ kids or invading armies. But that’s a misreading of the original intent.
When the 14th Amendment was drafted in 1866, the framers—like Senator Jacob Howard—made it clear they meant it to apply to people who owe full allegiance to the United States. That’s freed slaves, citizens, people permanently domiciled here. Not foreigners who are just passing through or breaking the law to get here. Howard said explicitly it doesn’t include “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” The debate in Congress backs this up— they weren’t trying to hand out citizenship to every kid born on U.S. soil no matter the circumstances.
Viva: Wait, John, hold on a sec. The counterargument I always hear is that Wong Kim Ark case from 1898 settled this. Guy born in San Francisco to Chinese immigrants—legal ones, sure—but the Supreme Court said he’s a citizen. Doesn’t that blow your theory out of the water?
John: Not at all, Viva. Wong Kim Ark is the big cudgel everyone swings, but it’s narrower than people think. Wong’s parents were lawful residents—here legally, running a business, fully subject to U.S. jurisdiction in the political sense. The court said he’s a citizen because his parents weren’t diplomats or some hostile force; they were part of the community. But the case didn’t address illegal immigrants or temporary visitors. The justices even said the phrase “subject to the jurisdiction” means full allegiance—owing no allegiance to another country.
Illegal immigrants, by definition, aren’t fully subject to our jurisdiction—they’re subject to deportation, not the draft, for example. They owe allegiance to their home countries. Same with tourists or visa holders. Wong Kim Ark doesn’t cover them, and the Supreme Court’s never ruled on that specific question. This executive order is teeing it up for them to finally decide.
David: So you’re saying this is a test case, basically? Trump’s throwing it out there to force the courts to weigh in?
John: Exactly. Look, the left’s already suing—18 states filed challenges within days. They’re screaming it’s unconstitutional, but that’s the point: let’s get it to the Supreme Court. The historical record’s on our side. Senator Lyman Trumbull, another key framer, said “subject to the jurisdiction” means “not owing allegiance to anybody else.” That’s not some fringe view—Ed Meese, Reagan’s AG, signed onto a brief I wrote years ago saying the same thing. If the court looks at the original meaning, not the lazy gloss we’ve had since the 20th century, Trump’s order holds up.
Viva: Alright, but practically speaking, John—what’s this mean for people? Like, babies born tomorrow to undocumented parents. They just… don’t get a birth certificate?
John: Not quite. They’ll still get a birth certificate—that’s a state thing, recording the birth. But federal agencies won’t issue citizenship papers. No Social Security number, no passport. States might try to fight it, issue their own stuff, but the feds control naturalization under the Constitution. It’ll create chaos short-term, sure—hospitals, parents, bureaucrats scrambling. But that’s the pressure point to get this resolved. Long-term, it’s about ending the magnet of illegal immigration. People won’t trek here to pop out a kid for an anchor baby if it doesn’t work anymore.
David: Fascinating. And you’re not worried about the optics? I mean, it’s a tough sell—denying citizenship to kids born here. Sounds harsh to a lot of folks.
John: Optics are Trump’s problem, not mine. I’m looking at the law and history. The 14th Amendment wasn’t a blank check for anyone to exploit. It’s been twisted into this universal giveaway, and that’s not what it says. If people don’t like it, amend the Constitution—good luck getting two-thirds of Congress and three-fourths of the states. Until then, this order’s a valid interpretation. Let the courts sort it out.
[18:45] Viva: Alright, John, we could go all day on this—fascinating stuff. Let’s pivot to something else…
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