On Tuesday, Chief Justice John Roberts and Justice Amy Coney Barrett joined the Court’s three liberal justices in ruling that any child born on American soil, regardless of the circumstances of their birth or the citizenship of their parents, is an American citizen. This decision in Trump v. Barbara stemmed from a modern interpretation of the 14th Amendment, one that, according to Justice Clarence Thomas’s 91-page dissent, is out of line with the original intent of the amendment’s authors.
Rewind to 1868. The Civil War is over, and lawmakers face the difficult task of not only reintegrating the defeated Southern states but also figuring out what to do with the roughly four million former slaves who inhabited them. Congress had built on Abraham Lincoln’s Emancipation Proclamation by passing the 13th Amendment to abolish slavery, but now it needed to ensure that those freed slaves could enjoy the same rights and privileges as any other American citizen. Lawmakers feared that the Southern states might eventually pass laws restricting the rights of former slaves, and their solution was the 14th Amendment.
The 14th is one of the longest and most complex amendments to the Constitution, as it was trying to accomplish many things at once. In the more than 150 years since its ratification, it has become something of a skeleton key to the Constitution, having been used to justify everything from affirmative action to abortion. For our purposes today, we can focus on the very first sentence of the 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.
Many very intelligent people have debated the precise meaning of that sentence, particularly the phrase “and subject to the jurisdiction thereof.” Chief Justice Roberts believes it means that anyone born on American soil is subject to the jurisdiction of the United States, while Justice Thomas disagrees. His dissent begins by attempting to understand the original purpose of the 14th Amendment, rather than using its words to support a more modern interpretation:
Blacks were entitled to citizenship because they were Americans. They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority. They ‘fought and bled in the same battles,’ ‘gained and gloried in the same victories,’ and were ‘liable to be called upon to defend [America] in time of war’ alongside every other citizen.
The quotations in that excerpt come from the writings of Frederick Douglass, the former slave who became one of the nation’s greatest advocates for emancipation.
Justice Thomas also pointed out that the 14th Amendment, like earlier laws upon which it was based, excluded certain people from the concept of birthright citizenship, including the children of foreign ambassadors, the children of enemy invaders, and Native Americans living under tribal governments. Indeed, the latter group was not granted automatic American citizenship until an act of Congress in 1924.
Many critics of the decision have circulated a screenshot of Senator Jacob M. Howard’s remarks during the debate over the Citizenship Clause of the 14th Amendment, in which he clarified that it “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of person.”
Of course, this was obvious to the framers of the amendment in 1868. Nevertheless, Chief Justice Roberts’ majority opinion declares that anyone born within the territory of the United States is automatically an American citizen. Under that ruling, an illegal alien can cross the Rio Grande, walk into a hospital, and give birth to a child who, as a citizen, qualifies for public benefits. The parent may later become eligible for lawful status through existing immigration law. A Chinese oligarch could impregnate a thousand surrogates through IVF, raise those little Americans under the Chinese Communist Party, and request mail-in ballots when they turn eighteen. A foreign citizen on a student visa can give birth in the United States, and that child is an American citizen, with all the legal benefits that citizenship conveys. (This is Kamala Harris’s origin story.)
At the heart of this debate are questions about the very concept of citizenship. Does it mean something tangible, or is it simply a legal classification? Buried beneath that simple word are many complex ideas, including attachment to one’s home, culture, tradition, and heritage, as well as the nature of nations, borders, and sovereignty.
Citizenship carries both privileges and responsibilities. Aliens and sojourners passing through our land cannot vote in our elections, are not entitled to certain public benefits, and may be subject to removal to their country of origin under immigration law. On the other hand, they generally are not required to serve on juries when called, nor can they be drafted into the military. In short, there is a distinction between the citizen and the non-citizen.
Natural-born citizens often take citizenship for granted. Unlike those who are naturalized later, we do not have to take a civics test or swear an oath of allegiance to obtain citizenship. Most of us have pledged allegiance to the American flag in school, at civic events, or at public meetings, though I wonder how deeply we consider its words. I suspect many Americans do not fully reflect on what citizenship really means.
We can see this distinction between citizen and non-citizen even more clearly in antiquity. In the Roman Republic, citizenship was originally limited to the patricians, descendants of Rome’s original founders. Over time, more people were allowed to become citizens, though often at a cost—perhaps monetary, or perhaps through military service. The book of Acts in the Bible relates how the Apostle Paul used his status as a Roman citizen—inherited from an ancestor who had acquired it somehow—to further his mission of spreading the Gospel of Christ.
In AD 212, Emperor Caracalla issued an edict granting citizenship to everyone within the borders of the Empire. This had the effect of devaluing the concept of citizenship—if everyone is a citizen, then there is nothing special about it. The devaluation of citizenship contributed to the decline of the Roman Empire, as the idea of being Roman became no more distinctive than being human. It was no longer a marker of identity, but instead became something global and cosmopolitan.
The world that gave birth to the American Revolution was different. People in Europe were not citizens but subjects of their king. They certainly possessed rights and responsibilities, but those ultimately derived from the authority of a monarch. In the New World, thousands of miles away from kings and nobles, men and women had to work together to survive. It is no surprise that a republican form of government naturally arose in the colonies.
Justice Thomas explicitly rejected the idea that the 14th Amendment incorporated English feudalism:
The Court says that the Citizenship Clause incorporated the English feudal principle that subjects owed lifetime servitude to the King who owned the soil on which they were born, but Americans—unsurprisingly—rejected this feudal principle.
This debate centers on two competing legal concepts of citizenship. Jus soli, or “law of the soil,” holds that you are a citizen of the place where you are born, regardless of your parentage or circumstances. This is the principle Chief Justice Roberts’ opinion upholds. Conversely, jus sanguinis, or “law of the blood,” holds that citizenship is determined by the citizenship of one’s parents.
Many nations in the Western Hemisphere operate according to jus soli, while a large number of countries instead follow jus sanguinis. A few countries, such as the United Kingdom, use a hybrid system, granting citizenship to children born on their soil only if at least one parent is already a citizen.
This distinction was evident during the debate over Barack Obama’s birth certificate. As you surely recall, Obama’s father was a Kenyan national, while his mother was American. According to the official record, Obama was born in Hawaii, though critics contended that he was born in Kenya. That distinction matters greatly under jus soli. Under jus sanguinis, however, Obama would have been an American citizen either way because his mother was an American citizen.
The stories of Barack Obama and Kamala Harris only deepen the question of what it means to be a citizen. Obama was born in Hawaii (probably) but spent part of his childhood in Indonesia in the culture of his stepfather. Once back in America, he followed the typical cursus honorum—Occidental College, Columbia University, Harvard Law School—and brought a distinctly cosmopolitan perspective to American politics. Harris represents an even more cosmopolitan example. Her father was Jamaican, her mother Indian, and she spent much of her youth in Canada.
Is it a good thing for people who spend their formative years outside the United States to be elevated to positions of leadership in this country? I’m not necessarily making a judgment here. Perhaps this is simply the natural direction of an increasingly globalized and cosmopolitan future.
American law recognizes jus sanguinis when it suits us. George Romney, father of Mitt Romney and a former governor of Michigan, ran for president in 1968. The fact that he was born in Mexico to an LDS family whose ancestors had fled the country following a crackdown on polygamy did not stop him from running, though questions were raised at the time. A 2012 ABC News article, published during Mitt Romney’s presidential campaign suggested that American law recognized the elder Romney as a natural-born American citizen by virtue of his parentage, despite being born outside the United States.
John McCain, the 2008 Republican presidential nominee, was born in the Panama Canal Zone to a Navy family, though one could argue that the Zone was technically American soil at the time. Senator Ted Cruz, who ran for president in 2016 and may do so again in 2028, was born in Canada to an American mother, and prevailing legal opinion holds that he is a natural-born U.S. citizen.
It seems clear that the modern conception of citizenship derives from both jus soli and jus sanguinis. The phrase “blood and soil” was, of course, tainted due to its use by the Nazis in the 1930s and 1940s. However, the underlying concepts remain important to many people. Consider how important it is in our own state to declare one’s status as a fifth-generation Idahoan compared to those “cowbirds” from the West Coast who only arrived a decade or two ago. Clearly, we hold the belief that where you are born and to whom you are born matters in meaningful ways.
Gov. Brad Little, whose grandfather Andrew came to Idaho from Scotland in 1894, has deep roots in the state. Members of the Nez Perce or Coeur d’Alene Tribes have even deeper roots in this land, from before it was called Idaho, before America itself existed as an idea. On the other hand, having only been here for eight years, I recognize that my own roots are much shallower, though I hope my children and their children will continue living here and deepening those roots over time.
That question becomes far more controversial when applied at the national level, where it touches on sensitive issues of race and ethnicity. Yet it is not going away anytime soon. Four self-described socialists recently won Democratic congressional primaries, with several such candidates having gone on record calling for the destruction of the United States as it exists today. Three of these candidates were backed by New York City mayor Zohran Mamdani, who is a naturalized US citizen from Uganda. Many Somali refugees, some of whom with U.S. citizenship, continue to defraud American taxpayers and send their ill-gotten gains back home—to their real home, that is. Texas Congresswoman Delia Ramirez, daughter of illegal Guatemalan immigrants, uses her position to advocate for amnesty and other policies that encourage further illegal immigration.
The fact that four justices dissented from this week’s ruling shows how closely divided this issue remains. Justices Thomas, Samuel Alito, and Neil Gorsuch held that the 14th Amendment does not confer automatic citizenship on anyone born in the United States, while Justice Brett Kavanaugh held that, although President Trump’s executive order contradicts current U.S. law, Congress has the authority to modify that law at any time. Change just one of the five justices in the majority, and this decision could have gone the other way—and still might in the future. The Supreme Court has reversed itself many times—see Dred Scott, Plessy v. Ferguson, Chevron, Roe v. Wade. Indeed, Justice Thomas concluded his dissent with a subtle prophecy that this too may eventually be overturned:
I am not sure that today’s opinion will stand the test of time. The Citizenship Clause ‘added greatly to the dignity and glory of American citizenship.’ Today’s opinion devalues that citizenship. I respectfully dissent.
Will the United States of America continue to be a nation with defined borders, a defined language and culture, and defined citizenship? Or will those things, as Justice Thomas said, be devalued, and will we follow the example of Rome in dissolving into a globalized miasma, the equivalent of a shopping mall food court? That is up to us, and to our posterity.
About Brian Almon
Brian Almon is the Editor of the Gem State Chronicle. He also serves as Chairman of the District 14 Republican Party and is a trustee of the Eagle Public Library Board. He lives with his wife and five children in Eagle.
