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To view this on the COS website, click here [[https://conventionofstates.com/news/birthright-citizenship-current-understanding-betrays-original-intent|birthright-citizenship-current-understanding-betrays-original-intent]]


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====== Birthright Citizenship: Challenging the Original Intent ======


Children of illegal aliens: Do they or do they not have rights of citizenship?


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|**They do not have rights!**\\ Donald Trump is working to re-establish the original intent of the 14th amendment through Executive Order: eliminating the understanding that the children of illegal aliens are entitled to citizenship. At the time the 14th amendment was passed, it was intended to ensure that [[https://www.realclearinvestigations.com/articles/2025/02/19/why_the_argument_for_birthright_citizenship_is_not_the_slam_dunk_many_say_it_is_1092115.html|slaves in this country]] could enjoy the benefits of citizenship following the Civil War:\\ \\ //Political moderates such as legal scholar and retired federal judge Richard Posner have{{https://content.conventionofstates.com/cosaction-prod/public/content/images/99469/99469_original.jpg?}} long ridiculed the idea of birthright citizenship, pointing out that Congress passed the 14th Amendment to ensure citizen rights and protections for former slaves, not the children of foreigners who gave birth in America.//\\ \\ //'What about these foreigners coming here – pregnancy tourists – who want to have their child born in the United States, so he will have refuge if things go bad in his country?’ said Posner during a 2015 talk discussing his book, "Our Republican Constitution: Securing the Sovereignty of the People.” ‘I don’t think it is required by law. I think the Supreme Court would say, what they meant was that the children of the former slaves would be citizen//s.’\\ \\ **Yes, they do!**\\ Yet in January 2025, a lawsuit was filed, claiming that the meaning of the amendment had a [[https://www.realclearinvestigations.com/articles/2025/02/19/why_the_argument_for_birthright_citizenship_is_not_the_slam_dunk_many_say_it_is_1092115.html|different intent]]:\\ \\ //Opponents of Trump’s order say the amendment’s meaning is clear. ‘The Citizenship Clause of the Fourteenth Amendment unambiguously and expressly confers citizenship on ‘[a]ll persons born’ in and ‘subject to the jurisdiction’ of the United States,’ reads a complaint filed in Federal District Court in Massachusetts. Signed by 18 attorneys general and the city attorney for San Francisco, the lawsuit states that birthright citizenship under the 14th Amendment is ‘automatic’ and ‘any attempt to deny citizenship to children based on their parents’ citizenship or immigration status would be ‘unquestionably unconstitutional.’//.\\ \\ On July 25, 2025,the judge ruled for the plaintiffs in this case.\\ \\ One phrase in particular has created controversy over its meaning and intent: “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.” Per Jonathan H. Adler, the [[https://reason.com/volokh/2025/01/23/debating-birthright-citizenship-again/|argument arises]] regarding the phrase that is in bold above:\\ \\ //The strongest counter-argument I have come across is that made by Peter Schuck and Rogers Smith (based on their 1985 book), but their argument does not vindicate the{{https://content.conventionofstates.com/cosaction-prod/public/content/images/99472/99472_original.jpg?}} Trump Administration's position. Rather, their position is that Congress has ‘the power to regulate access to birthright citizenship for groups to whose presence or membership it did not consent’ by defining what constitutes being ‘subject to the jurisdiction of the United States.’ And if one takes an expansive view of Congress's Section 5 power to implement and enforce the terms of the Fourteenth Amendment, this argument may have some force. But even if one accepts this argument (and I am unpersuaded), this would at most allow for Congress to enact legislation excluding some groups, such as those unlawfully present in the country, from conveying birthright citizenship. //\\ \\ **They do so have rights.**\\ John Yoo, who has served in all three branches of the federal government, is currently the Emanuel Heller Professor of Law at the University of California at Berkeley.  He believes the [[https://www.civitasinstitute.org/research/birthright-citizenship-is-american-citizenship|current and long-standing understanding]] of the amendment is correct:\\ \\ //Congress did not draft the Fourteenth Amendment to change citizenship but to affirm American practice dating from the origins of our Republic. Instead, the Fourteenth Amendment’s framers sought to correct the most grievous travesty in American constitutional history: slavery and the deprivation of the rights of African-Americans.  In Dred Scott v. Sanford, Chief Justice Roger Taney concluded that slaves –even those born in the United States – could never be citizens of the United States.  He argued that the Founders believed that blacks were never to become equal Americans, even though the Constitution nowhere contained text that excluded them from citizenship nor prevented Congress or the states from recognizing their rights.//\\ \\ //{{https://content.conventionofstates.com/cosaction-prod/public/content/images/99475/99475_original.jpg?}}The Fourteenth Amendment directly overruled Dred Scott by declaring that all persons born in the US were citizens. By setting out the definition in the Constitution, the Reconstruction Congress and the ratifying states also forever prevented Congress and the President from removing citizenship from children born to any group, especially ethnic, religious, or political minorities. The only way to avoid this clear, obvious reading of the Constitution’s text is to misread the 14th Amendment’s phrase, ‘subject to the jurisdiction thereof.’ //\\ \\ **We don't think they have rights.**\\ Yoo explains how two well-known legal scholars [[https://www.civitasinstitute.org/research/birthright-citizenship-is-american-citizenship|don’t agree with his assessment]]:\\ \\ //According to [John]Eastman and [Edward] Erler, the scholar whose work has made the most extensive case against birthright citizenship, the phrase created an exception that swallows the jus soli [right of soil] rule. Eastman and Erler argue that ‘subject to the jurisdiction thereof’ requires that a citizen not only be born on American territory but that his parents also must be citizens. Aliens who owe allegiance to another nation, in their view, are not ‘subject to the jurisdiction’ of the United States. Eastman and Erler claim that the Reconstruction Congress, which sought to overturn Dred Scott permanently, simultaneously sought to radically narrow the definition of citizenship.//  \\ \\ **We await a Supreme Court decision** to sort out these differences, and hopefully determine{{https://content.conventionofstates.com/cosaction-prod/public/content/images/99476/99476_original.jpg?}} once and for all the definition of the 14th amendment and birthright citizenship.\\ \\ **Convention of States**\\ An Article V Convention, approved of by the U.S. Constitution, would allow for the possibility to clarify once and for all who is entitled to be a citizen through debate and proposed amendments. Article V ensures that all citizens have the right to set limits on the actions of our government.\\ \\ [[https://conventionofstates.com/florida|**Learn more**]] about your role in self governance and join us in protecting our republic.\\ \\  \\ \\ #|PETITION_WIDGET{petition_tag:Petition Widget;coalition_id:;anedot_url:}|#|


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|  __Page Metadata__  ||
|Login Required to view?  |No                  |
|Created:                 |2025-07-30 18:01 GMT|
|Updated:                 |2025-07-31 22:33 GMT|
|Published:               |2025-07-31 22:33 GMT|
|Converted:               |2025-11-11 12:06 GMT|
|Change Author:           |Susan Quinn         |
|Credit Author:           |                    |