President Biden’s years-long abrogation of his duty to protect America’s borders from foreign invasion led to a nasty snapback when Donald Trump entered the Oval Office on Jan. 20, 2025. That day, President Trump issued Executive Order No. 14,160, “Protecting the Meaning and Value of American Citizenship.” Trump’s edict sought to stop further issuance of citizenship documents to the children of either illegal aliens or temporary visitors. In other words, birthright citizenship—the granting of citizenship to babies born on U.S. soil regardless of their parents’ legal status—would be no more.

Not surprisingly, the left erupted in priggish indignation in response to Trump’s frontal assault on their utopian plan to undermine the republic. The American Civil Liberties Union (ACLU) filed suit in New Hampshire without delay. Together with New Hampshire Indonesian Community Support, the ACLU characterized Trump’s “attack on newborns” as a “reckless and ruthless repudiation of American values”—values that it doesn’t ascribe to the unborn. “Birthright citizenship,” according to the ACLU’s wishes and hopes, “makes the United States the strong and dynamic nation that it is.”

Theo Oshiro, co-executive director of Make the Road New York, pestered President Trump that “Birthright citizenship is a cornerstone of our democracy.” The CEO of the League of United Latin American Citizens, Juan Proaño, habla’ed that Trump’s order was no bueno and would “undermine the very essence of what it means to be an American.” Finally, the Asian Law Caucus’s Aarti Kohli tried to end the discussion before the case even made it to the courtroom: “If you’re born here, you are a citizen—period.” 

Aarti Kohli might want to reread her elementary school grammar book to refresh herself on the rules of punctuation. Periods indicate finality of thought. Contrary to Kohli’s baseless contention, the debate has only just begun. And neither the facts nor the law support her bumper-sticker logic, or ACLU Senior Staff Attorney SangYeob Kim’s misguided claim that Trump’s commonsense order “directly opposes our Constitution, values, and history.” 

On Jan. 23, 2025, 84-year-old U.S. District Judge John Coughenour piled on. His intemperately issued judicial block described Trump’s order as “blatantly unconstitutional.” However, intelligent consideration of the 14th Amendment, the Civil Rights Act of 1866, the Supreme Court’s decision in United States v. Wong Kim Ark, English common law, and contemporaneous executive practice all indicate the contrary. Perhaps we should consider age limits for federal judges instead—period.

Consider the 14th Amendment’s Citizenship Clause in its entirety: 

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.

Not even ACLU attorneys would try to befog the meaning of “born or naturalized in the United States.” As their previous quotes above indicate, the lawyers actually agree with that provision. So instead, they distort the commonsense understanding of “subject to the jurisdiction of.” 

The 14th Amendment’s wording derives from the Civil Rights Act of 1866, which declared as citizens “all persons born in the United States and not subject to any foreign power.” Timing matters here. Congress submitted the 14th Amendment to the states just two months after the Civil Rights Act’s passage over President Andrew Johnson’s veto. As NYU law professor Samuel Estreicher, a self-professed “LBJ Democrat,” has noted, “There is not a hint in the ‘legislative history’” of any intention to “expand the scope of birthright citizenship… or to eliminate or nullify the effect of the ‘not subject to any foreign power’ exclusion” during that short interlude. 

More importantly, the drafters specifically worded the 14th Amendment’s Citizenship Clause more narrowly than the Equal Protection Clause’s sweeping phrase “any person within its jurisdiction,” as the May 29, 1866, congressional debate shows. Michigan Senator Jacob Howard excluded “persons born in the United States who are foreigners, aliens” from the amendment’s protections, since foreigners and aliens are, by definition, subject to a foreign power. Senator Lyman Trumbull was more direct. He first teed up an obvious question: “What do we mean by ‘subject to the jurisdiction of the United States’?” Then he drove home the obvious answer: “Not owing allegiance to anybody else. That is what it means.” Good rhetoricians don’t use the “Period” crutch.

Senator Reverdy Johnson of Maryland added that he knew of “no better way to give rise to citizenship” than to limit it to the birth of those “born of parents who at the time were subject to the authority of the United States.” Of course, Johnson spoke before today’s commonplace treason of dual citizenship had polluted the calculus. Unable to shed his LBJ-inflected, ill-advised charity, Estreicher leaves open the minuscule possibility of “at best scant support” for birthright citizenship as a conclusion of his rigorous study. Academics use “scant” to hedge against using “none.”

Legal scholars at the time also spoke out on the “subject to” wording. In his 1880 book, The General Principles of Constitutional Law in the United States of America, University of Michigan Law School Dean and, later, Michigan Supreme Court Justice, Thomas M. Cooley, echoed the senators’ logic. Cooley ruled out those born to parents subject to “any qualified and partial jurisdiction, such as may consist with allegiance to some other government.” Attorney General George H. Williams, who voted for both the Civil Rights Act of 1866 and the 14th Amendment as a senator from Oregon, defined “jurisdiction” for then-President Ulysses S. Grant in a 1873 letter. “Aliens,” which he defined as “persons born here and naturalized abroad, dwelling or being in this country,” were “subject to the jurisdiction of the United States only to a limited degree.” As such, their children born in the United States were not citizens by virtue of their birth.

In a series of later cases, the State Department also drew clear limits on birthright citizenship. Secretary of State Frederick Theodore Frelinghuysen declared “untenable” one infamous claim of birthright citizenship. Frelinghuysen argued that the relevant statutes concluded that “the fact of birth, under circumstances implying alien subjection, establishes of itself no right of citizenship.” Moreover, those born under such conditions can only acquire subsequent citizenship “in some legitimate manner through the operation of the statute.” 

In 1879, Acting Secretary of State F. W. Seward warned that even those born in accordance with the 14th Amendment might later risk losing their citizenship. His example was the two young sons of a man named James Smith, both born on American soil, who risked losing their citizenship after their father voluntarily expatriated to Mexico. The boys “were undoubtedly American citizens by birth” since their father’s change of allegiance occurred after the younger one’s birth, according to Seward. However, Seward ruled the boys would no longer be considered U.S. citizens after reaching maturity if they were to “remain in Mexico and come within any provision of Mexican law making them citizens of that republic.”

The most decisive 19th-century case involved the Ohio-born child of a German father living—where else? —in Germany. That child, Richard Greisser, moved to Germany at the age of two, and then with his mother to Switzerland after his father died. Secretary of State Thomas Bayard argued Greisser’s nationality followed that of his parents, German then Swiss, since his father was “subject to a foreign power at his birth.” Again, that is common sense—only someone with an elite legal education would try to deny it.

Building on that victory, Bayard laid out his definition of citizenship in a subsequent passport case. The ACLU hive mind would have short-circuited, had it existed back then. Citizenship, according to Bayard, required “correlative duties of loyal service, of love to the country of adoption, of support of the country when she needs support.” In other words, think twice before you decide to harm a fellow citizen, burn the American flag, or serve in a foreign military. American citizens must also pay “the just taxes that the country imposes on all its citizens,” so you might want to close your secret Cayman Islands bank account. Those who fail to meet these fundamental criteria lose “the prerogatives of the citizenship on which they are conditioned.” Remind me again, how many dual citizens serve in Congress? 

Those who hate the republic cite the Supreme Court’s Wong Kim Ark decision as the last word on birthright citizenship. For them, Wong’s birth on U.S. soil sufficed to make him a citizen. However, they dismiss Justice Gray’s finding that such persons are indeed citizens, but only as long as their parents “are permitted by the United States to reside here and are ‘subject to the jurisdiction thereof.’” In other words, Justice Gray’s remarks imply he might have decided the case differently had Wong’s parents resided in the U.S. illegally or maintained allegiance to the Chinese Emperor. Lord Edward Coke’s comments in the 1608 English legal decision Calvin’s Case, which Gray cited in Wong, required “parents be under the actual obedience of the King” as a criterion for their children’s royal subjecthood. 

Appellate Court Judge Steven Menashi’s recent article in the Harvard Journal of Law & Public Policy, “The Birthright Citizenship Debate,” will either help guide our judiciary toward the correct decision or guarantee he never sits on the Supreme Court.  “The status of the child follows that of the parents,” Menashi notes. “The children of diplomats, foreign soldiers, or American Indians” have no claim to birthright citizenship under the 14th Amendment. These exclusions result from the “broader principle” of their parents not being “subject to our jurisdiction.” 

The 14th Amendment’s birthright citizenship provision rectified the injustice done to the newly freed slaves. Who knew it would lead to 33,000 annual tourist births in the U.S.? Stop it now—period.  ◆