As most of my readers know, I am not a huge fan of President Donald Trump. This, of course, doesn’t mean that I prefer Joe Biden or Kamala Harris or any other Democrat to Trump. I, in fact, loathe Biden and Harris much more than the Reason staffers who voted for them in 2020 and 2024.
I have always praised Trump when he gets things right (most recently, see here and here). And on the subject of “birthright citizenship,” Trump gets things right. We don’t have to agree with all of Trump’s immigration policies (I don’t) to agree with him on birthright citizenship. Indeed, the most diehard libertarian advocate of “open borders” could and should still agree wholeheartedly with Trump on birthright citizenship.
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One of Trump’s first acts as president was to issue an executive order “Protecting the Meaning and Value of American Citizenship.” The relevant part reads:
Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s 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 was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Unfortunately, a federal judge declared the executive order “blatantly unconstitutional,” and issued a two-week injunction against it.
According to a report by the Center for Immigration Studies (CIS), there were, in 2024, 400,000 “anchor babies” born in the United States to mothers who were not U.S. citizens. They were either illegal immigrants or foreign nationals in the United States with temporary visas or as tourists. These babies are granted automatic U.S. citizenship by virtue of their being born on U.S. soil because that is how the Fourteenth Amendment has been interpreted. They are therefore entitled to education, healthcare, and welfare.
According to the first article of the Fourteenth Amendment: “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.”
The members of Congress who wrote the amendment in 1866—according to their own published comments on the amendment—never envisioned “birthright citizenship” as it is promoted today. It is only because of court rulings that purported to interpret the amendment that people have believed otherwise. The sole purpose of this section of the Fourteenth Amendment was to grant citizenship to formerly enslaved blacks. It was based on the Civil Rights Act of 1866, which stated that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
That “subject to the jurisdiction thereof” meant that some persons born on U.S. soil were not citizens is evident by the fact that American Indians were not recognized as citizens until the passage of the Indian Citizenship Act of 1924 even though their presence on American soil long predated that of the framers of the Fourteenth Amendment.
Yet, Jeff Jacoby, a columnist for the Boston Globe, a writer that I often read and most often agree with, believes that birthright citizenship is a constitutional right:
Birthright citizenship isn’t a privilege that presidents can bestow or withdraw at will. It is a constitutional mandate, enshrined in the 14th Amendment, which was ratified in 1868.
Birthright citizenship is a constitutional entitlement that cannot be abrogated by executive order or even legislation.
Trump can deride birthright citizenship as “ridiculous,” but it is bedrock constitutional law.
According to Jacoby and other advocates of birthright citizenship, the phrase “subject to the jurisdiction thereof” excludes from U.S. citizenship only the children of foreign officials, ministers, ambassadors, consuls, diplomats, emissaries, and soldiers who serve in some official capacity for a foreign government.
But proponents of birthright citizenship can’t have it both ways. If the “subject to the jurisdiction thereof” clause of the Fourteenth Amendment excludes from citizenship the children of foreign officials, ministers, ambassadors, consuls, diplomats, emissaries, and soldiers though they be born on U.S. soil, then it likewise excludes from citizenship the children of illegal aliens and foreign visa holders and tourists though they be born in the United States. And if it does not exclude from citizenship the children of illegal aliens and foreign visa holders and tourists born on U.S. soil, then it likewise does not exclude from citizenship the children of foreign officials, ministers, ambassadors, consuls, diplomats, emissaries, and soldiers who are born on U.S. soil.
And how do we know this? Because the Fourteenth Amendment makes no distinction between the two groups. Foreigners who come here—for whatever reason—are “subject to the jurisdiction” of a foreign government, as are any of their children who are born here. If they or their children don’t want to be under such jurisdiction, then they can apply to become a naturalized U.S. citizen like Elon Musk did.
The phrase “subject to the jurisdiction thereof” cannot possibly mean just “subject to U.S. laws,” like former U.S. House member Justin Amash claims: “It should be obvious that even individuals who are unlawfully present in the United States are ‘subject to the jurisdiction thereof.’ ‘Jurisdiction’ is just the applicability of legal authority to them and the potential exercise of state power against them.”
Even foreign diplomats and officials subject to the jurisdiction of their government with “diplomatic immunity” in the United States are subject to U.S. laws otherwise they could murder, rape, and pillage with impunity. They can even be issued traffic citations.
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And according to the State Department publication Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities,
There is a common misunderstanding that consular personnel have diplomatic status and are entitled to diplomatic immunity.
Consular officers are those members of consular posts who are recognized by both the sending and the host country as fully authorized to perform the broad array of formal consular functions. They have only official acts or functional immunity in respect of both criminal and civil matters, and their personal inviolability is quite limited. Consular officers may be arrested or detained pending trial only if the offense is a felony and that the arrest is made pursuant to a decision by a competent judicial authority (e.g., a warrant issued by an appropriate court).
They can also be prosecuted for misdemeanors. Yet, children born on U.S. soil to these foreigners serving in official capacity for their governments are not granted birthright citizenship.
And there is more: “Persons sent to the United States on short-term official duty with diplomatic missions ordinarily do not enjoy any privileges and immunities.” Yet, even the children born on U.S. soil to these individuals who are fully subject to U.S. laws are not granted birthright citizenship.
The conclusion is inescapable. Since the phrase “subject to the jurisdiction thereof” does not just mean “subject to U.S. laws,” even the children of foreigners fleeing persecution by their governments, who consider themselves to be stateless and not owing allegiance to any government, and who want to pledge full allegiance to and be fully under the jurisdiction of the United States, are not automatically citizens just because they are born on U.S. soil.
