28 Comments
User's avatar
Peter Allen's avatar

I know for a fact there are clinics in California and Florida which aid in "birth tourism" enabling expectant mothers to give birth to their babies while here on a tourist visa. This is an abuse of the system and should be shut down.

Expand full comment
GKHoff's avatar

Agreed. Taking the issue to the courts, and eventually the SCOTUS, might at least result in narrowing the right of natural born citizenship right to parents who intend, legally or not, to reside in the country permanently. It's worth a try.

Expand full comment
CA T Paul's avatar

Not necessarily buying your legal analysis, nor rejecting it (I think this is a subject that will require a lot more research and discussion) but, as usual, a well done article. Thanks for presenting both sides of the issue.

Expand full comment
Karen Degenhardt's avatar

"subject to the jusistiction thereof"

Please see Mark Levin's lesson on birthright citizenship from this past Saturday's Fox show.l

Oher than those you noted (ambassadors / American citizens living abroad) no one else rightfuly belongs here..

Expand full comment
Glenn K Beaton's avatar

Levin is stretching, and he knows it. Trust me, this will go down 9-0 at the Supreme Court.

That's not what I want, but it's what I know will happen.

Expand full comment
Bitter Klinger's avatar

So what about the “original intent” argument? As you say, the authors of the 14th Amendment did not anticipate its use as an invitation to the invasion of the nation by people not nearly as “deserving” or entitled as former African slaves, so they obviously did not intend it to be abused in this way.

Expand full comment
Jack Hennessey's avatar

Couldn't congress pass a law that better defines "subject to the jurisdiction thereof" to mean that it is not for visitors, tourists, people running across the border to have babies?

Expand full comment
Bitter Klinger's avatar

Or couldn’t the High Court refine the definition, based on the obvious intent of the Amendment’s framers?

Expand full comment
Glenn K Beaton's avatar

Well, yes, the Court can do whatever it wants.

I doubt they'll make that stretch, however. The language seems plain to me, to the two courts that have considered it in the last month, and to most legal analysts (though there are some who are willing to stretch the words into something else).

Expand full comment
John Michael's avatar

May I offer a hypothetical? Suppose a pregnant woman swims to a Texas beach one dark night, gives birth, and immediately return to her home country with her baby, never having been discovered. At what point did she subject herself to the jurisdiction of the United States? In fact she evaded the jurisdiction thereof. How and when does citizenship attach?

Expand full comment
Glenn K Beaton's avatar

Congress can't undo a provision in the Constitution (even if it's there by amendment) by passing a law.

Expand full comment
John Michael's avatar

It may be a close question for those who are in the country legally at the time of their child’s birth. Even then I would argue they are traveling under a passport from and subject to the jurisdiction of their home country rather than that of the United States. But in the case of a pregnant woman who enters the country illegally, has she not indicated by her act that she is not subject to the jurisdiction thereof, in fact has explicitly rejected the jurisdiction thereof, and her child is therefore, if for no other reason, not a citizen.

Expand full comment
Gail W's avatar

It seems to me that "SUBJECT" is the crucial word to define and clarify.

Another column weighs in here:

https://tomklingenstein.com/understanding-the-fight-over-birthright-citizenship/

I hold the non-legal expert opinion that "subject" must include rights of voting (even if permanently or temporarily revoked due to criminal actions of the individual)and subject to being called to serve on jury duty, and perhaps other things above and beyond merely having to obey societal norms of things like traffic laws, without which any country would have anarchy. I think any country and certainly OUR country of the United States of America should hold the bar as high as possible to gain citizenship. (Goodness knows that even for the application process, even Canada has a harder threshold to achieve. They have to PROVE their LANGUAGE SKILLS!)

Expand full comment
AllKnowingDuck's avatar

With several references to the “loophole”, the Supreme Court certainly has the duty to codify the Founders’ intent.

Expand full comment
Paul137's avatar

The point about tourists, etc. really doesn't apply. They're not subject to such of our laws as the draft (whereas Lawful Permanent Residents -- holders of "green cards" -- are) nor jury duty, nor could they be convicted of treason. Meanwhile British tourists, used to driving on the left, have to drive on the right while they're here.

I'll quote the editors of Investor's Business Daily from November 29, 2005: "Becoming a U.S. citizen should require more than your mother successfully sneaking past the U.S. Border Patrol."

Glenn acknowledges that point, but I think he draws a wrong conclusion. Such trivialization of the "subject to the jurisdiction" clause would mean that that it consisted of throwaway words. Plus foreign ambassadors and their offspring are "subject to the jurisdiction" of our laws in the same limited sense as those British tourists.

I'm a retired physicist with no legal training, but I'd be happy to stand before the Supremes, greet them, offer that one sentence from IBD as my case, and sit down. I don't think there's any serious argument that the 14th Amendment's framers would have accepted the misbegotten interpretation we've been living with.

However, this nationally ruinous foolishness goes back decades before Joe Biden.

Expand full comment
Glenn K Beaton's avatar

Much of the commentary that the 14 A does not mean what it says is underpinned with a belief that we WISH it didn't.

I share that wish. But wishes don't usually impress Supreme Court justices. About that, I'm glad.

Expand full comment
David Mulkey's avatar

I, not a legal scholar at all, don't agree. Living in Las Vegas and Aspen, we have millions of tourists, many coming to conventions. Say, for example, CES, which probably attracts 50,000 from Asia, many of whom are women. Are they while here a few days under foreign passports under our jurisdiction? If anything hits the fan, I would guess their country would say they were under their own country's jurisdiction. Just speculating, of course, but I think it is a brilliant solution to consider.

Expand full comment
Raymond Fleischman's avatar

In Walnut and Diamond Bar California the Chinese have had Birthing Tourist business since the early 90s. They were making Americans in China............then dropping them out here. The laxity of this has created a nightmare for immigration.

Expand full comment
WBH's avatar
Feb 18Edited

The original intent was to force those recalcitrant democrats in the South to recognize children of freed slaves as citizens. The "subject to the jurisdiction" wording was intended to LIMIT the application of this amendment to those slave children, not to EXPAND the meaning to include illegal invaders, shipwrecked citizens of another country, or people who otherwise stepped 2 feet inside our boarders.

As Glen mentioned the writers never intended for that to be the result.

My simplistic method of looking at these things is to imagine that we could bring the original authors into the court and ask them if they did, in fact, intend for this amendment to apply to people illegally crossing into our country for the expressed purpose of securing citizenship for their child in the hopes of the child being able to later allow them to enter the US when they likely otherwise could not. I suspect that the authors would be horrified that we are foolish enough to think that this was in any way their intent, and likely they would be insulted that we think them so dull as to allow this interpretation.

Although I am no legal expert, I suspect that if a law was written today with a misplaced comma or ambiguous phrase that changed the meaning of a law given a plain reading of the text, the courts would uphold the INTENT of the law.

The SCOTUS recently ruled that the original intent of the Second Amendment should be respected. To that end, the Court requires that any challenge to the plain reading of the law be backed up with historical proof of examples that demonstrate the challengers interpretation was, in fact, practiced historically. Using that same logic, I think we would be hard pressed to find examples dating back to near the end of the Civil War that demonstrate criminals sneaking into the US and having babies that were recognized as instantaneously being granted citizenship.

Glen may be right that the courts will rule against Trump on the meaning of the 14th Amendment. I think that if that happens, it will be inconsistent with their ruling on the 2nd Amendment, inconsistent with the original intent, and inconsistent with rational behavior. Yes, I "wish" that result, but I also fail to understand how it's rational for the court to rule against the obvious intent of the original authors.

Expand full comment
ThurmanLady's avatar

I get what you're saying, and still believe you're incorrect. Obviously, an EO isn't going to cut it, but originalist intent contributes, as does "jurisdiction," and previous SCOTUS cases on the subject. If we can have exclusions for obvious reasons (diplomats), we can have exclusions for those who are subject to our laws, under our protection simply because they're here, but NOT subject to our government/country as a whole (ie, "allegiance" to the US).

A plain reading alone isn't necessarily intent, either. Other SCOTUS decisions have talked about intent, and I believe that will play a part.

The most well-known SCOTUS case, United States v. Wong Kim Ark, established citizenship to a child born of permanent legal immigrants. That is not "birth tourism," or a child simply born "on the north bank of the Rio Grande." That, too, should be factored in.

I guess we'll see.

Expand full comment
Raymond Fleischman's avatar

How come Ambassador's kid born here is not a citizen? You are a Lawyer, I'm a retired Mold Maker and on this question of Law, you are wrong. Read the writing of the authors of the 14th amendment,. it was only intended for the children of the newly Freedmen. It was 1927 before Indians (Native Americans) could become citizens. In 1899 Legal Chinese Immigrants took their child's case to the SCOTUS and won because they are subject to the jurisdiction thereof. I have a 1957 copy of the Constitution of the USA, it's Sources and Application,this is their view. I got a latter one as well for the purpose of seeing what it said, produced and sold by Barns & Nobel and it agrees with you though cites noting to show the change. We will disagree here and I think you're going along with the notion. If you entered here illegally or overstayed your Visa, you broke our laws, your off spring does not get citizenship for your criminality. I believe it was after Ted Kennedy's Immigration Reform that it started seeping in. How many born here citizens occurred during say the Eisenhower Administration? I do feel this needs the SCOTUS to rule once and for all but I do feel "and subject to the jurisdiction thereof," is a clincher.

Expand full comment
Glenn K Beaton's avatar

Perhaps you should send a copy of your materials to the two Federal judges who ruled the other way, saying it wasn't even a close call. One of whom, I might add, was a Republican appointee.

Expand full comment
Raymond Fleischman's avatar

Wrong is wrong unless you feel Dred Scott was good law.

Expand full comment
Glenn K Beaton's avatar

I see you're angry, Raymond.

But don't get angry with me. Get angry with the drafters of the 14th A, who were a bit sloppy or, most of all, get angry with Joe Biden for deliberately inflicting this problem on us.

Me? I'm just reading the words, and reading the considered commentary of good judges and scholars. I don't like it, but at the Supreme Court this case is a loser. Probably by 9-0.

Expand full comment
Raymond Fleischman's avatar

I'd be interested in when and who these judges are. Between the publication of my 2 tomes, something changed.

Expand full comment
Bobbi's avatar

Illegals are not "subject to the jurisdiction there of". That's the way I've heard it explained by other attorneys I have read. The other side does like to ignore the spirit of how and why the constitution was written. By all means, let's get it to the Supreme Court.

Expand full comment
Glenn K Beaton's avatar

OK, gang, some of you have mentioned the "subject to the jurisdiction" of the United States argument. I've seen that argument elsewhere, probably in the same places you've seen it.

The problem with that argument (among other problems) is that it's circular. It says (1) the baby is illegal because it's not subject to the jurisdiction of the United States, and (2) it's not subject to the jurisdiction of the United States because it's illegal.

Circular arguments have universal, if fallacious, application. I suppose the same thing could be said about me: I'm illegal because I'm not subject to the jurisdiction of the United States, because, after all, I'm illegal.

Expand full comment