Before the Supreme court now
As you may know, this is going on now. Most have felt that it is a tall order for the solicitor to argue the government’s case that NO- Illegals cannot visit and pump out American Citizens.
When asked for an objective analysis, the AI instance I used produced this fascinating argument.
I. Constitutional and Original Intent (14th Amendment)
The relevant clause:
“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.”
Key phrase: “subject to the jurisdiction thereof”
Original meaning debate:
At the time of the 14th Amendment’s ratification (1868), this clause was generally understood to exclude those not fully subject to U.S. political jurisdiction—primarily foreign diplomats, foreign occupying forces, and members of Native tribes not taxed.
Senator Jacob Howard, who helped draft the clause, stated it was meant to exclude persons who owed allegiance to another sovereign.
Wong Kim Ark (1898): The Supreme Court ruled that a child born to lawfully present Chinese immigrants was a U.S. citizen. However, it did not address children born to illegal immigrants or tourists, so its scope is limited.
Conclusion on intent: The framers likely did not intend for the 14th Amendment to automatically grant citizenship to children of people who are in the U.S. unlawfully or only temporarily. The phrase “subject to the jurisdiction” seems to imply allegiance and full legal incorporation, not just physical presence.
II. Comparative International Norms
Most developed nations do not offer unrestricted birthright citizenship. For example:
Canada and the U.S. are outliers in offering broad jus soli (right of the soil) citizenship.
Europe, Japan, Australia, and much of the developed world rely on jus sanguinis (right of blood), or offer conditional birthright citizenship only when at least one parent is a legal resident or citizen.
Conclusion: Globally, there is strong precedent and modern support for limiting citizenship to children whose parents have a legal or permanent connection to the country.
III. Practical Concerns
Incentive distortion:
Current policy incentivizes “birth tourism” and illegal entry specifically to gain citizenship for children, with secondary benefits like welfare access and family reunification leverage (“anchor baby” effect).
Resource strain:
Public services (healthcare, education, etc.) must be extended to citizen-children of those with no legal status. This burdens taxpayers and public systems.
Legal inconsistency:
If someone commits a felony by entering the country illegally, how can their child (benefiting from that act) be granted the highest legal privilege (citizenship)? ***Jason here … This is an interesting point. Fruit of the poisoned tree?? WOW***
IV. Policy and Precedent-Minded Judgment
If I were the neutral arbiter:
Citizenship should not be granted automatically to the children of people who are in the U.S. illegally or only temporarily.
It should be granted to children born to permanent legal residents, citizens, or those with lawful long-term presence.
This would better reflect:
The intent of the 14th Amendment drafters,
International norms and expectations,
The fairness and sustainability of U.S. public policy.
Recommendation
Congress or the Supreme Court should clarify the meaning of “subject to the jurisdiction thereof” to limit birthright citizenship accordingly. Alternatively, a constitutional amendment could resolve ambiguity if the courts are unwilling.
(5)Nuh Uh.
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It should be a winning argument. I have personally believed this for many years. Illegals intentionally avoid subjecting themselves to US Jurisdiction.