Below is my column in the Hill on the argument this week in Trump v. Barbara, the birthright citizenship case. There are good-faith arguments on both sides and lawyers are divided on the question. For that reason, the most notable brief may have been the amicus brief of the American Bar Association, which filed a strident defense of birthright citizenship.
Here is the column:
The Supreme Court will soon hear arguments in the historic birthright citizenship case. It is a hearing that has been over 150 years in the making, since the ratification of the 14th Amendment. It is not just a long-debated question that has divided the nation, but it has divided many lawyers as well.
For that reason, there was one brief that stood out before the court: the amicus brief of the American Bar Association.
The ABA filed its “friend of the court” brief to argue that the matter is clear: Anyone who gives birth on our soil, even if here illegally or only briefly, may claim U.S. citizenship for their child.
Most nations on Earth, including many of our European allies, reject birthright citizenship, and many of us in this nation believe that it is a foolish policy. Yet, even as someone who opposes birthright citizenship, I have long believed and argued that there are good-faith arguments on both sides of this debate.
The sponsors of this language clearly disagreed on the issue at the time of its enactment. Some stated at the time that the language did not allow for birthright citizenship.
The debate comes down to six poorly chosen words: “and subject to the jurisdiction thereof.” Those words were not in the original draft, but were inserted by an amendment. Thus, they were not superfluous or casual verbiage, but an intentional condition. They were placed in the middle of an otherwise clear statement that “all persons born or naturalized in the United States … are citizens of the United States.”
For more than a century, many have argued that the words reflect an intent to limit the amendment to citizens and legal residents who are subject fully to the jurisdiction of the United States.
That brings us back to the bar association. Regardless of how one comes out in the fascinating historical and constitutional debate, this is a case one would expect the ABA to sit out. It clearly does not speak for all lawyers on the issue, yet, it filed a strident brief and laid out a parade of horribles about what would happen if the Supreme Court were to reject birthright citizenship.
I found the brief to be one of the least compelling submissions to the court. But, once again, the media will portray the brief as speaking for American lawyers, even though the ABA represents less than two out of every ten attorneys.
I previously wrote a column on these pages on “the rise and fall of the American Bar Association,” exploring how the ABA has alienated many lawyers with its partisan advocacy. When it was founded on August 21, 1878, in Saratoga Springs, New York, the 75 lawyers present from 20 states (and the District of Columbia) wanted an organization to create a national system of standards for “the advancement of the science of jurisprudence, the promotion of the administration of justice.” It was created to focus on professional accreditation, education, and training.
That changed in 1990, when advocates overrode earlier votes to remain neutral on the constitutional interpretations supporting the right to abortion. The adoption of a pro-abortion position shocked many and fundamentally changed the culture at the ABA. (It is worth noting that the very arguments embraced by the bar association were later rejected by the Supreme Court in the Dobbs decision.)
Since that time, the ABA has become fully captive to partisans who use the organization to support liberal and often Democratic Party positions. The result has been a steady decline in membership.
Today, there are roughly 1.3 million lawyers in the U.S. Even if the ABA represented just half of that number, it would have 650,000 members. As recently as 2015, it still had 400,000. But more recently, membership has fallen to 227,000, or just 17 percent of the bar.
Despite complaints that the ABA has become a partisan organization, its leadership has doubled down with positions and programming that are echo chambers for the left. During Trump’s terms, the ABA has uniformly opposed him and his policies.
The ABA brief in favor of birthright citizenship is signed by ABA President Michele Behnke. It simply declares the language and history clear and resolved. It then predicts a virtual meltdown of order and due process in this country if birthright citizenship is not upheld.
The decline of the ABA to the point where it does not speak for most lawyers has followed a familiar model. The media also abandoned neutrality in covering such stories, with many journalism schools now teaching students that they are advocates for social justice. Likewise, academia largely purged its departments of Republicans, conservatives, and libertarians, as it increasingly prioritized advocacy over education.
All three of these groups have one thing in common beyond their liberal ideological bias and advocacy: They are all increasingly unpopular. Higher education and the media have plummeted in public trust to record lows. Like the ABA, which can no longer claim to speak even for most lawyers, there is little indication that the loss of trust is causing the leadership to do any soul-searching.
As memberships and revenues decline, the use of these institutions for advocacy remains personally beneficial. Behnke is leading an organization that is a shell of its former self, but she (like academics and journalists) is lionized for taking these positions.
Ironically, Behnke has a role in two of these areas, as a board member for the University of Wisconsin Law School and the University of Wisconsin Foundation and Alumni Association Board.
Faced with an ABA doubling down on these controversial positions, various states are moving to do away with its historical role in bar memberships.
The brief reaffirmed for many lawyers that the ABA is no longer a neutral and fair representative for all lawyers. It will continue to represent a dwindling faction of lawyers who look at the association as more of a stridently ideological than a strictly professional organization. That is why, whatever the outcome in Trump v. Barbara, the American Bar Association is likely to be the loser.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
China’s abuse makes birthright citizenship a life-or-death choice for America
Peter Schweizer analyzed the results from decades of birth tourism — which brings pregnant Chinese women or other foreign nationals to our soil, including territories like our Northern Mariana Islands, for the express purpose of giving birth here and acquiring American citizenship for their offspring — in his book “The Invisible Coup.”
He estimated that “at least 750,000 and possibly as many as 1.5 million Chinese, who are also American citizens by virtue of being born here, are now growing toward adulthood in China.”
https://nypost.com/2026/03/31/opinion/chinas-abuse-makes-birthright-citizenship-a-life-or-death-ruling/?utm_campaign=nyp_postopinion&utm_source=sailthru&utm_medium=email&utm_content=20260331&lctg=62680bbe38a279b1870b18c5&utm_term=NYP%20-%20Post%20Opinion
Trump v. Barbara. My opening argument (speaking for the USG):
Mr. Chief Justice and may it please the Court:
Citizenship determination is a complex administrative function affecting hundreds of millions of people. It’s not an abstraction. Every day, decisions have to be made, in allotting benefits like welfare and voting, as well as exacting obligations like jury duty. Compulsory military service is even possible in a national crisis. These decisions depend on the government knowing who are its citizens — as distinct from foreign nationals present in the country.
The Constitution in Article I, Section 8, Clause 4 gives Congress the authority to devise Citizenship eligibility rules, a power that has been exercised frequently over our 250 years, allowing The People to customize Immigration and Citizenship pathways to fit the public ethos of the time. One such statute, the Civil Rights Act of 1866 had to be constitutionalized via the 14th Amendment to definitively quash the Dred Scott precedent and a host of legal maneuvers mounted in State Courts to nullify that statute.
If those statutes and Amendment 14 were detailed and explicit enough to address every possible individual circumstance, we wouldn’t be here today arguing this case. So, I would frame the main issue before us as this: When ambiguities in Citizenship Law are left unresolved, who decides?….again reminded that individual dispositions are a daily responsibility of government. The Exec. Branch will argue that it must fill in the blanks left in question by Congress, as necessary for orderly administration of the law. It will also assert that, being the 2nd political branch of government, and its elected leaders having submitted themselves to the rigor of running for election and winning office, and specifically having told voters in advance how they thought about today’s issue, the Executive brings along a measure of public authority in resolving those legislative ambiguities.
My friends on the other side argue that the public’s wishes needn’t be considered, but rather only those of plaintiffs who claim injury from this Exec. Order. On the question of who decides, they want the Judicial Branch to call the shots, which means a handfull of Plaintiffs, their counsel, and sympathetic Judges be the ones to decide — even if in defiance of public majority opinion — and to compel the Exec. Branch to conduct Citizenship policy by Court Order.
At some point in the proceedings, I expect at least one of you will ask me, “What would you have us do?” Speaking for the Administration that has the daily responsibility I mentioned, I would implore you to take up the issue of “Who decides?”, clarifying the appropriate roles of the 3 branches in matters of Citizenship policymaking:
Start with Congress. Headline Article I, Section 8 as giving Congress the ultimate say over eligibility for automatic birthplace citizenship.
Next, the Exec. Branch. For birth situations left not clearly delineated by existing statute, rule that the Exec. Branch, as the 2nd political branch, can establish by Exec. Order missing policy details until they become resolved by Congressional statute. Don’t be afriad to point out Congressional due diligence for timely upkeep of Citizenship law, and the dishonor of sitting back while the Executive is forced to do Congress’ job.
Finally, your Branch. For individual cases left dangling unaddressed by the other two branches, Federal Courts may decide individual case dispositions.
That roadmap for resolving conflicts over Citizenship Law hews to basic Constitutional architecture, and upholds its underlying principle that policies reflect the consent of the governed as expressed in national elections. It may be a bumpy road moving forward, but only to the extent public sentiments themselves gyrate. The Constitutional division of responsibilities I advise can provide both and orderly process and one enjoying broad public consensus on the topic of newborn Citizenships.
Finally, an orderly process must be a consideration in your decision, and toward that end,
this Administration, if you uphold the Exec. Order, will reset the effective date of the Exec. Order to afford the States and Counties a grace period of 18 months to adapt their systems and procedures, the grace period to begin the day after publishing your case decision. In this way, there can be no hint of retroactivity, and US Citizenships awarded leading up to the effective date will be sacrosanct. In exchange for this 18 month grace period, there will be an expectation that State and local governments work cooperatively with us to design a smooth-running system with all avenues for fraud proactively cut off.
I’ll be happy to answer any questions.
Pb, it’s a national security-related matter.
Dem scam
Jonathan Turley has frequently warned that our constitutional system is under attack not just from policy, but from a ‘crisis of faith’ driven by a lack of understanding of the Framers’ intent. This debate on the 14th Amendment is a perfect case study.
We are operating in an environment where the average American reads at a 7th-grade level and 70% fail basic civic quizzes. Professor Turley often notes that the Constitution was designed to be ‘idiot-proof,’ yet it requires a self-governing people to actually comprehend its core covenants. When literacy and civic proficiency are this low, Olly’s argument—that birthright citizenship is a ‘free prize’—effectively weaponizes that lack of comprehension.
It replaces the Supreme Court’s long-standing legal definition of ‘jurisdiction’ (territorial obedience to law) with a purely political one (allegiance or permission). As Turley has argued, the ‘usual alliance’ of pundits often skips over the actual ambiguity of the 14th Amendment’s text to favor emotional narratives. By reducing a 150-year-old constitutional mandate to a ‘prize,’ we aren’t just debating immigration; we are proving Turley’s point that a lack of civic literacy is leading us toward a system governed by ‘rage’ rather than the rule of law.
Rage that Turley uses to demonize the left and to manipulate those on the right on complex issues like the Birthright citizenship case.
X
Aside from the spin and ad hominem I mostly agree.
But the spin and ad hominem ARE a problem.
You ceded that more is required than mere birth within the US to receive automatic citizenship.
And you ceded that the condition – “subject to the jurisdiction thereof” has some ambiguity.
In correctly ceding those points you lose any basis for insulting those who disagree with you.
The argument that the children of illegal immigrants do not automatically receive citizenship is actually a very good one.
I have heard it articulated very well by some very capable proponents.
But ultimately I beleive it is weaker than the argument that “subject to the jurisdiction thereof” only excluded those in the US actually serving for a foreign power.
But the FACT that is a stronger argument does NOT make those differing evil, or rage filled, or dolts.
This case reflects a REAL debate on multiple levels.
It is a debate over what did those who crafted the 14th amendment intend.
It is also a debate over what should our immigration policy be.
While My position is that the meaning of the text of the 14th amendment grants citizenship to those born in the US if their parents were not here legally or if their parents were here legally as tourists.
It is independently my position that that if I were to decide from scratch how US immigration should work – that would be my choice.
But those who disagree with me – either on the intent of the reconstruction republicans that crafted the 14th amendment or wioth regard to how things SHOULD work., are not stupid or rage ridden or …. merely because they disagree.
I also find it humerous that YOU are arguing for featly to the text of the 14th amendment when you have been perfectly willing to read your own values into the text of the constitution when they clearly are not present.
Arguing for textualism one day and reading laws and constitution as broadly as possible the next is massively hypocritical.
John, you’re missing the point. Acknowledging that words are debated isn’t ‘ceding’ the argument—it’s recognizing that we have a Supreme Court to resolve those debates. They did that in 1898.
My point wasn’t that people are ‘stupid’ for having a different opinion. My point is that the rhetoric being used—like calling citizenship a ‘free prize’—is designed to exploit a documented decline in civic literacy. It replaces 125 years of case law with an emotional slogan.
You can have a ‘very good’ argument for why the speed limit should be 80, but if you’re doing 80 in a 55, you’re still breaking the law. Calling out the difference between ‘what the law is’ and ‘what some wish it were’ isn’t an ad hominem attack; it’s a reality check.
Debate over the meaning of the 14th amendment is not “our constitutional system under attack” – especially in a case like this where “subject to the jurisdiction thereof” is a clause with a significant amount of ambiguiity.
I have serious problems – and most often from the left with those who constantly wish to re-litigate well and properly settled constitutional issues.
“Shall make no law” is NOT absolute, but it is also not an invitation for restrictive laws.
Regulating speech. religion, assembly, or petitioning government is supposed to be incredibly difficult.
Those such as yourself who find the first amendment less than a speed bump to regulating speech, religion, assembly or petitioning government are the ONLY ones “attacking” our constitutional system.
“Shall make no law” – is not even a tiny bit ambigious – while “subject to the jurisdiction thereof” is.
“We are operating in an environment where the average American reads at a 7th-grade level and 70% fail basic civic quizzes.”
Absolutely – and that is a serious problem. Further that was far LESS true 50+ years ago BEFORE we poured a fortune in government funding into education, BEFORE we empowered public education as a replacement for parents, BEFORE we added myriads of layers of left wing politically driven deterous that have nothing to do with public education.
Why should we be surprised that Johnny can not read when our education system is actively attempting to confuse him as to whether he is male or female ?
Why should we be surprised when students and parents have to be affraid they we be suspended or expelled for noting that “all lives matter” ?
Why should we be surprised that stidents do not know civics – when we do not teach it. When we spend more time on the topeka race riots than on the reconstruction amendments to the constitution ?
“Professor Turley often notes that the Constitution was designed to be ‘idiot-proof,’ yet it requires a self-governing people to actually comprehend its core covenants. ”
‘Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.’
John Adams
The US constitiution – or just the ability to self-govern depends on somprehension of that western system of values that those of you on the left pi$$ all over.
Adam’s observation that the constitution was only suitable for a religious people – is likely overstated. People can behave morally without religion, and people can act immorally while steeped in religion. But those ARE the exceptions rather than the rule. The lefts efforts to destroy religion – have lead to declining morality, and that has lead to the problems we have governing ourselves, because minimal levels of societal morality ARE necescary for self govenrment.
“When literacy and civic proficiency are this low,”
Litteracy was much lower for most of US history. Wile we have had a deviation for a more than two century trend of rising literacy as a result of left wing nuts in education trying to expand education into propoganda for left wing causes – and as a result have lost focus on the critical core of education – still this is a RECENT trend – the last 50 years – NOT the past 250 years.
Americans are MORE literate than at the founding.
I would further note that these western values that RESULT in higher litteracy, civic comprehension, and constitutional understanding are DELIBERATELY devoid from left wing nut education as the development of western values that culminated in the scottish enlighment and are reflected in the creation, existance and success of the United States are antithetical to the left.
You rail at a lack of literacy, of knowledge of civics, of constitutional understanding, that are the consequences of YOUR choices regarding education.
Typical of the left – create a problem, and then demand more power pretend to solve it.
John, you claim to despise those who ‘re-litigate well and properly settled constitutional issues,’ yet you are doing exactly that with the 14th Amendment. The Supreme Court settled the ‘ambiguity’ of birthright citizenship in Wong Kim Ark over 125 years ago. If ‘shall make no law’ is not absolute—as you admitted—then it is just as ‘ambiguous’ as ‘subject to the jurisdiction.’ Why is it an ‘attack’ on the system when the left interprets a clause, but ‘principled’ when you try to overrule a century of precedent?‘
Also, Your claim that literacy was higher 50+ years ago is factually incorrect; US Census data shows illiteracy was significantly higher in the mid-20th century and plummeted after the very ‘government funding’ you blame for the decline. Furthermore, you argue that we should prioritize the Reconstruction Amendments over teaching about racial violence, but how can anyone ‘comprehend the core covenants’ of the 14th Amendment without understanding the very violence and exclusion it was written to stop? You aren’t defending civics; you’re asking to white-wash the history that gives the Constitution its meaning.
😂 idiots…the 14th gives ex-slaves and their children citizenship and for a moment wrap your pea brains around these were people having no citizenship to any country, nation, place anywhere, you ffing morons. That’s the purpose. Do you understand purpose, telos? Indians excluded as the freaking Indian nations, diplomats as they have known allegiance. NO OTHER ALLEGIANCE EINSTEINS. THAT’S THE PURPOSE. It’s a period piece, reconstruction and further says no matter where blacks and their children are within the US they have equal protection under the law.
I’M DONE.
^^^^ You people aren’t good enough to tie the shoes of the forefathers. You’ve got millions of foreign fffing operatives in the country capable of voting here and flying back to Gaza for vote.
Let’s see how smart 6 of these justices are.
OT. AI is hard at work. Most don’t pass the Turing test. What to listen for: important is imporunt. End consonants are not pronounced. Made up voices during dialog as in Glenn Beck garbage, Hannity. Valley as walley. Token female voices chiming in. Ugh
A. Human
What a joke. I’ll travel back and forth from nation to usa and vote in 2 countries. I was born in US so I’m a citizen and inherited my parents foreign citizenship also.
A real joke.
So long, fare thee well
^^^ additionally 20 million? HUH? Dumb as a box of rocks. It’s AMAZING this was ever a developed nation.
I deny any association
^^^ I don’t think Rachel Levine is a woman nor treasury secretary Bessent is married either.
Thank you ,PT, for the blog and I enjoyed your talk on radio Sunday morning with the Commonwealth Club.
I deny being here.
There are good-faith arguments on both sides
No, there are not. The arguments against birthright citizenship are not made in good faith.
The meaning of “subject to the jurisdiction” is crystal clear, and no one really believes otherwise. It is only capable of one meaning: someone who is bound to obey US law, and can be arrested and tried for breaking it; who can be sued in US courts and forced to testify in US courts; and who must pay taxes.
A person is not under US jurisdiction only if that person is immune from US law; if they can’t be arrested, sued, made to testify, or taxed. There are three and only three categories of people who have such immunity, and two of those are currently empty: Diplomats and their families, “Indians not taxed”, and members of foreign armies. Diplomatic immunity is something that the Washington and NYC police deal with daily. “Indians not taxed” has been an empty category since Congress decided in 1924 that all Indians must pay taxes. And there are not currently any foreign armies stationed on US soil.
Anyone who argues that “subject to the jurisdiction” in the 14th amendment has some other meaning than that is not arguing in good faith. They don’t believe their own arguments, and don’t make them in any other context.
In particular I refer to those who deliberately misquote Senator Jacob Howard’s speech in favor of the 14th amendment, falsely claiming that he said it excluded three classes of persons – “persons born in the United States who are foreigners, aliens, [and those] who belong to the families of ambassadors or foreign ministers….” (I’m quoting a recent article by a so-called legal expert making this argument.) The insertion of the words “and those” is a deliberate ploy to distort Howard’s words and pretend that he referred to three classes rather than one. He was very clear that he was referring only to one category: “foreigners, aliens who belong…”
Not that Howard’s opinion is dispositive. An amendment means what its text says, as it would have been understood by an ordinary person at the time. The draftsman’s intentions are irrelevant, since he’s not the one who enacted it. It was enacted by all the federal and state legislators who voted for it, and there is no way to know what each of them was thinking. But for whatever the sponsor’s opinion is worth, Howard made his clear: If the parents have to obey US law then their children born in the USA are citizens; if they are immune then their children are not citizens.
That’s silly, Milhouse.
In such a case, tourist visas should question pregnancy of the female visitors. 😏. That’s it, milhouse? 🤔 I’m, 3 months pregnant. I’ll get a passport and visa for 6 months. Yep. That’s it.
Kamala Harris, neither parent was a citizen. She was born here, left with mother and returned for high school. Her father had naturalized by then.
. She was born here, left with mother and returned for high school.
You are a liar. Her parents were married, and lived here. She was born and raised here until she was 12, when her mother moved to Montreal. She lived in Canada for only about six years, from age 12 to 18, when she returned to the USA to go to college, and stayed.
In any case it makes no difference. Born here without diplomatic immunity means she’s a citizen.
The “person” referred to in the Citizenship Clause is the one whose Citizenship is at question in this case, not the parents of the newborn who were NOT born in the US. Yet you are applying the “under the jurisdiction thereof” test to the parents, not the baby.
How many newborn babies are subject to arrest? How many can be sued? Testify in Court? Do newborns ever pay taxes?
I see the slight of hand in your argument, and I’m guessing most Americans do.
If we take your operational definition of “subject to the jurisdiction thereof”, those criteria begin to apply when a person is late teen or adult. They sound absurd applied to a newborn infant. Guess what?
Before this insane interpretation tracing back to the Supreme Court Wong Kim Ark case, all immigrant children obtained US Citizenship not at time of birth, but later when their parents Naturalized (by Derivation). This policy keeps same immigrant status within the family of parents with minor children. It was the process established by the first Congress in 1790, acting on the powers enumerated in Article I Section 8.
The oddest thing about the way you are interpreting 14A is that NOBODY IN 1968 knew it!. If that change were the intent of the 14A Ratifiers, wouldn’t immigrant parents have started demanding their kids US citizenship upon birth — instead of waiting for their own Naturalization? They didn’t. Ask yourself why. It’s obvious. That meaning was never Ratified. It was an ex post facto re-interpretation of the bare language, for the first time some 30 years after the Amendment.
You know that it’s a violation of Article V to attempt to change the meaning and impact of the Constitution without going through the public consensus-building needing to muster 3/4 of state legislature majorities, right? That’s what you and the ACLU are trying to do. It’s obvious “the consent of the governed” has no particular role in how the indiscriminate expansion of Birthplace Citizenship came about. That’s why it’s an affront to democracy.
1868
A diplomat and his ENTIRE FAMILY have diplomatic immunity, including the newborns.
And no, it was NEVER the case in the USA that children born here were naturalized with their parents. They never needed naturalization because they were already citizens. Only children who were brought here by their parents were naturalized together with them.
All this was the original meaning that the text of the amendment had when it was ratified. The debates show that everyone understood this.
The constitution vests the courts and only the courts with the power to say what the law is. Doing so is NOT an amendment, it’s explaining what the law always meant.
The meaning of “subject to the jurisdiction” is crystal clear, and no one really believes otherwise. It is only capable of one meaning: someone who is bound to obey US law, and can be arrested and tried for breaking it; who can be sued in US courts and forced to testify in US courts; and who must pay taxes. NICE TRY ! THAT’S NOT WHAT IT MEANS.
It is not only what it means, it’s the ONLY POSSIBLE MEANING. Anyone who claims to believe otherwise is lying.
The Trump administration is turning to civil war white supremacists as an argument on birthright citizenship? Wow.
low effort X, whY? r u Zzzzz?
MAGA forever!
LAME post X. 3 X’s you’re out!
You’re historical wires are crossed — it was the Reconstruction Congress of 1866 that authored the lingo that was later adapted for the Citizenship Clause of 14A. These Republicans were fighting to undo 250 years of race-based slavery-oppression.
And those people were clear on what they meant. That it would cover EVERY PERSON born in the USA, except those with immunity to US law.
X
Way to Spin.
Abraham Lincoln – who more than anyone is responsible for the liberation of blacks in this country for slavery also wanted to send them back to Africa after they were freed.
Nearly all our founders – and all those who defeated the Confederacy were “white supremacists”.
Frankly most consequential world leaders and most people in most of the world are national and/or racial supremecists.
An INHERENT human trait is placing more value on those closer to us than those further away.
We value ourselves first, then our family next, our tribe/community, our race, our nation, our religion.
The more distant others are from us – the less value we place on them.
That is NATURAL – it has always been true. And it will always be true.
Abraham Lincoln and Adolf Hitler were radically different people.
Both were white supremecists.
Calling someone – particularly someone from 200 years ago a “white supremecists” is like saying they existed.
Washington. Jefferson even Franklin owned slaves.
That does not mean we disegard everything they did.