'Subject to the Jurisdiction Thereof’: Birthright Citizenship and the Fourteenth Amendment

2025-02-25

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Summary

This meeting of the subcommittee convened to discuss the foundational question of birthright citizenship in the United States, specifically focusing on the interpretation of the 14th Amendment's "subject to the jurisdiction thereof" clause[ 00:46:02 ]

. The discussion explored historical context, legal precedents, and the policy implications of differing interpretations, particularly concerning children born in the U.S. to parents who are illegal aliens or temporary residents[ 00:47:20 ] .

Themes

Interpretation of the 14th Amendment's "Jurisdiction Clause"

Witnesses and members presented starkly different interpretations of the 14th Amendment's Citizenship Clause[ 00:46:15-00:46:33 ]

. Proponents of a restrictive view argued that the clause, rooted in its original public meaning and the Civil Rights Act of 1866, grants birthright citizenship only to children whose parents owe full and exclusive allegiance to the United States[ 00:47:20-00:47:33 ] . They posited that children of illegal aliens and temporary legal residents, who do not owe such allegiance, are therefore not citizens by birthright[ 00:48:50-00:48:59 ] . They contended that the Supreme Court's 1898 Wong Kim Ark decision was limited to children of lawful permanent residents and has been broadly misinterpreted over time to extend automatic citizenship to all children born on U.S. soil. This perspective suggested that President Trump's executive order aimed to restore the original meaning of the 14th Amendment[ 00:48:02-00:48:08 ] .

Conversely, opponents of a restrictive interpretation asserted that the plain text of the 14th Amendment dictates that anyone born in the United States is a citizen, with only narrow exceptions such as children of foreign diplomats or invading soldiers[ 00:54:26-00:54:34 ]

. They highlighted that the amendment was specifically drafted to overturn the Dred Scott decision and ensure citizenship for formerly enslaved individuals and children of immigrants, irrespective of their parents' legal status. They pointed out that multiple federal judges, including Reagan and Bush appointees, have found President Trump's executive order to be unconstitutional, citing decades of established legal precedent.

Policy Implications and National Security Concerns

Arguments were made that universal birthright citizenship fosters illegal immigration and "birth tourism," where pregnant foreign nationals travel to the U.S. solely for their children to gain citizenship[ 00:47:55-00:47:55 ]

[ 00:52:05-00:52:21 ] . Speakers cited statistics on "anchor babies" and the financial burden placed on government programs due to benefits for U.S.-born children of illegal aliens, totaling billions annually[ 00:50:24-00:51:25 ] . Significant national security concerns were raised, particularly regarding adversaries like China, who allegedly exploit birth tourism to embed individuals within U.S. society, potentially leading to espionage or other threats[ 00:52:49-00:53:31 ] . It was also noted that most developed nations do not practice unrestricted birthright citizenship like the U.S. currently does.

Conversely, arguments were made that ending birthright citizenship would create a "permanent underclass" or "legal caste system," undermining fundamental American values of equality and opportunity[ 00:56:05-00:56:19 ]

. Opponents warned of a logistical "nightmare" where maternity wards and state agencies would be burdened with verifying the immigration status of parents, potentially rendering newborn children undocumented from birth[ 00:55:59-00:56:01 ] . They emphasized that the U.S. has a historical strength in integrating children of immigrants and that American identity is traditionally based on birthplace rather than ancestry or lineage.

Role of Congress and Executive Orders

There was a debate over the appropriate branch of government to address the issue of birthright citizenship. Those advocating for a more restrictive interpretation argued that Congress holds the power to clarify citizenship laws and should pass legislation, such as the Birthright Citizenship Act, to align with the 14th Amendment's original meaning. They viewed President Trump's executive order as a legitimate exercise of executive authority to restore the original interpretation[ 00:48:02 ]

Conversely, those favoring a broad interpretation asserted that a president cannot unilaterally alter a constitutional amendment; such a change would require another constitutional amendment. They characterized the executive order as an unconstitutional attempt to rewrite history and circumvent the proper constitutional amendment process[ 00:54:41-00:54:51 ]

. The consistent blocking of the executive order by federal courts, including those with judges appointed by Republican presidents, was cited as evidence of its unconstitutionality and overreach.

Tone of the Meeting

The tone of the meeting was contentious and deeply polarized[ 00:54:12 ]

. Speakers from both sides engaged in sharp rhetoric, accusing opponents of misinterpreting the Constitution, rewriting history, or acting with political motives[ 00:47:55 ] . Accusations of "racist arguments" and "playing the race card" were exchanged. There were also emotional appeals, with some members sharing personal family histories related to immigration and military service to underscore the value and meaning of American citizenship. Both sides heavily relied on legal precedents and historical context, often interpreting the same facts to support opposing conclusions[ 00:46:46-00:47:20 ] [ 00:54:48-00:54:48 ] . The frequent references to judicial rulings, particularly those blocking the executive order, highlighted the significant legal challenges surrounding the issue.

Participants

Transcript

Robert F. Onder Jr.

The subcommittee will come to order. Without objection, the chair is authorized to declare a recess at any time. We welcome everyone to today's hearing on birthright citizenship. I will now recognize myself for an opening statement. As Supreme Court Justice Louise Brandeis once wrote, the most important office and the one which all of us can and should fill is that of private citizen. This hearing is on the issue foundational to our republic. Who is an American citizen by birthright? Section 1 of the 14th Amendment grants citizenship to all persons who are, quote, born or naturalized in the United States and subject to the jurisdiction thereof, end quote. It is the latter clause, subject to the jurisdiction thereof, that we will examine today in significant part. Our inquiry is simple. What was the original public meaning of the jurisdiction clause? The 14th Amendment was drafted to rectify the terrible decision in the 1857 Dred Scott v. Sanford case by recognizing former slaves as rightful Americans. As we'll learn from our witnesses today, the answer is clear. The Jurisdiction Clause, as originally understood, grants birthright citizenship only to children whose parents have full exclusive allegiance to the United States. The constitutional text in history shows that children of illegal aliens and legal aliens who are in the United States temporarily are not citizens by birthright under the 14th Amendment. For decades, proponents of automatic birthright citizenship have claimed the 14th Amendment and the Wong Kim Ark case bestows automatic citizenship to all children born to foreign nationals, including illegal aliens. This is a blatant misunderstanding of both items, resulting in birthright citizenship serving as a driving force of illegal immigration to the United States, as many illegal aliens and temporary visa holders know they can reap the benefits of their child's citizenship. President Trump's first day executive order on birthright citizenship restored the 14th Amendment to this original meaning. Despite what you may hear on the news, some of the most respected legal scholars agree with the constitutional interpretation outlined in President Trump's executive order. Some of these legal scholars include those here on this panel today.

Robert F. Onder Jr.

Our witnesses will dive into the history of the 14th Amendment in Congress and the Supreme Court, but I'll give you a brief version. The drafters of the 14th Amendment understood not to grant citizenship to persons, quote, owing allegiance to any foreign sovereignty, end quote. And in the first cases decided after ratification, the Supreme Court held that jurisdiction in the 14th Amendment means not merely subject in some respect or degree to the jurisdiction of the United States, but completely, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. Of course, illegal aliens and legal temporary United States residents do not owe complete, direct, and immediate allegiance to the United States. And therefore, their children are not citizens by birthright under the 14th Amendment. Now I'm sure we'll hear a lot from our colleagues on the other side of the aisle about Supreme Court precedent as well. So let us make one thing clear at the outset. The Supreme Court has never held that children of illegal aliens or aliens who are in the United States temporarily are entitled to birthright citizenship. President Trump's executive order is consistent with Supreme Court precedent. I'd also like to emphasize the purpose of today's hearing. We're here to discuss an important constitutional question. This is, after all, the Constitution subcommittee. And I hope that we can keep our focus on the text and history of the 14th Amendment. But no doubt some of the policy implications will come up. And it would be a disservice not to at least mention those important issues implicated by the constitutional question. In addition to twisting the Constitution, a court precedent conferring automatic citizenship is a bad policy. It devalues the meaning of American citizenship by bestowing it to the children of lawbreakers who entered the United States without the consent of its people, almost rewarding them for trespassing into our country's soil. To add context, an estimated 124,000 to 300,000 so-called anchor babies, which are children born to illegal aliens, are born each year according to the Center for Immigration Studies. In 2023,

Robert F. Onder Jr.

Up to 250,000 children were born to illegal aliens in 2023, which accounted for 7% of total births in the nation that year. Moreover, it further strains government programs that are already strained. For example, in terms of supplemental nutrition assistance, SNAP, which provides school meals, Americans shell out $5 billion each year in SNAP and food stamps for the U.S.-born children of illegal aliens, according to a 2023 report by the Federation for American Immigration Reform. If one looks at the amount illegal aliens and their U.S.-born children are projected to consume in federal welfare program benefits, the American taxpayer foots an even larger bill. Take, for example, in a July 2024 report, the Congressional Budget Office, that answers to us, concluded that the federal government is projected to spend $177 billion in welfare benefits to illegal aliens and their U.S.-born children over the next 10 years. Now, mindful, that is a larger population, but it is clear that the A birthright citizenship issue implicates those issues. This $177 billion includes Medicaid, SSI, Obamacare premium tax credits, food stamps, and more. Ending universal birthright citizenship, and thereby ending birth tourism, a practice in which pregnant women travel to the United States to give birth and secure citizenship for their children, is good policy. Birth tourism diverts U.S.

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