“On Friday, the Supreme Court announced that it would hear challenges to President Donald Trump’s executive order to end birthright citizenship. The 14th Amendment automatically makes all babies born on American territory citizens. Trump’s effort to overturn the traditional reading of the constitutional text and history should not succeed.
“Ratified in 1868, the 14th Amendment provided a constitutional definition of citizenship for the first time. It declares that “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 antebellum America, states granted citizenship: they all followed the British rule of jus soli (citizenship determined by place of birth) rather than the European rule of jus sanguinis (citizenship determined by parental lineage). As the 18th-century English jurist William Blackstone explained: “the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.” Upon independence, the American states incorporated the British rule into their own laws.
“Congress did not draft the 14th Amendment to change this practice, but to affirm it in the face of the most grievous travesty in American constitutional history: slavery. In Dred Scott v. Sandford (1857), Chief Justice Roger Taney concluded that slaves — even those born in the United States — could never become American citizens. According to Taney, the Founders believed that Black Americans could never become equal, even though the Constitution did not exclude them from citizenship nor prevent Congress or the states from protecting their rights. . . .
“Everyone on our territory, even aliens, falls under the jurisdiction of the United States. Imagine reading the rule differently. If aliens did not fall within our jurisdiction while on our territory, they could violate the law and claim that the government had no jurisdiction to arrest, try and punish them.” — Supreme Court Showdown Exposes Shaky Case against Birthright Citizenship, John Yoo, Fox News, 12/10/25 [Link]
Fact Check of Above Quote: Yoo is wrong to claim that the United States should follow British law to allow everyone born in the U.S. to be a citizen. The key phrase he quotes from Blackstone “natural born subjects” affirms this point. Americans are citizens, not subjects. Citizens freely give loyalty to their country. Subjects are simply members of the realm, irrespective of whether they give it allegiance. Thus from the American perspective, the awarding of citizenship must involve the issue of loyalty.
Yoo claims that being under U.S. jurisdiction just means being subject to our laws. Certainly it is obvious that someone on U.S. soil is subject to our legal system. And since it is obvious, why would the framers of the 14th Amendment have bothered to state it—unless they intended to mean something more with the word jurisdiction? In fact, they did mean more. As Sen. Layman Trumbull, a sponsor of the Amendment, explained: ‘What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means.’ ”
Subsequent Supreme Court rulings upheld this view. The Slaughter House Cases of 1873 held that “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” In Elk v. Wilkins (1884) the Court ruled that an American Indian, though born in the U.S., was not a citizen because of his tribal affiliation. To be a citizen, according to that ruling, one must owe the U.S. “a direct and immediate allegiance.” The logical conclusion from these two cases is that the jurisdiction clause does not apply to illegal aliens and their children.
In 1898, however, the Court seemed to take a different stance in its Wong Kim Ark decision. That ruling held that a man born in the U.S. to subjects of China was a citizen. Even so, it is significant that these parents were legal residents. As the Court noted “they had a “permanent domicile and residence in the United States.” This statement at least suggests that they had allegiance to the United States rather than China.
The time has come for the Supreme Court to make a definitive ruling on the jurisdiction clause. If it properly considers the intent of the 14th Amendment framers and the weight of legal precedent, it will end birthright citizenship.