Below is my column in the Hill on the expected reaffirmation of birthright citizenship by the Supreme Court after the oral arguments in Trump v. Barbara. The question raised in the column is whether such a decision should be the final word on the subject or whether we should have a national debate on a possible new citizenship amendment. Some countries among the minority recognizing birthright citizenship had such debates and decided to reject it. Polls indicate that most Americans support birthright citizenship. If so, an amendment would obviously fail. However, it may be time to have such a national debate.
Here is the column:
“Well, it’s a new world. It’s the same Constitution.”
Those words from Chief Justice John Roberts during this week’s oral arguments signaled that the conservative justices are unlikely to reject birthright citizenship. Of course, nothing is certain until this summer when the Court issues its opinion in Trump v. Barbara. However, we need to consider the need for a 28th Amendment to reaffirm the meaning of citizenship.
As some of us stressed before the oral argument, the odds were against the administration prevailing in the case, given more than a century of countervailing precedent. There are good-faith arguments against reading the 14th Amendment as supporting citizenship for any child born in this country. It is doubtful that the drafters of the 14th Amendment could have envisioned millions of births to illegal aliens. They surely did not imagine foreigners coming to this country for the purpose of giving birth — or even, without ever entering the U.S., contracting multiple U.S. residents to carry babies to term for them as surrogates.
The historical record is highly conflicted. Some drafters expressly denied that they intended for birthright citizenship to be covered by the 14th Amendment.
The rampant abuse in this country and the widespread rejection of birthright citizenship by other countries (including some that once followed it) did not seem to impress the conservative justices. Roberts’s statement was in response to Solicitor General John Sauer’s argument that “We’re in a new world now … where eight billion people are one plane ride away from having a child who’s a U.S. citizen.”
Although President Trump has lashed out with personal attacks on the conservative justices as “disloyal” and “stupid,” they are doing what they are bound by oath to do: apply the law without political favor or interest. I expect most of the justices agree with the vast majority of countries — and the president — that birthright citizenship is a foolish and harmful policy. But they are not legislators; they are jurists tasked with constitutional interpretation.
Trump appointed three principled justices to the court. To their (and to his) credit, Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett have proven that they are driven by the underlying law, not the ultimate outcome of cases.
For conservatives, constitutional interpretations offer less leeway than their liberal colleagues or believers in the “living constitution.” If you believe in continually updating the Constitution from the bench to meet contemporary demands, constitutional language is barely a speed bump on your path to the preferred outcome in any given case.
In my Supreme Court class, I call this a “default case” in which justices tend to run home. When a record or the law is uncertain, conservative justices tend to avoid expansive, new interpretations. That was precisely what Trump said he wanted in nominees.
These justices are not being “disloyal” to him, but rather loyal to what they view as the meaning of the Constitution. I have at times disagreed with their view of the law, but I have never questioned their integrity.
None of this means we should accept the expected outcome in this case as the final word on birthright citizenship. Justice Robert Jackson once observed that he and his colleagues “are not final because we are infallible, we are infallible because we are final.”
The final word actually rests with the public. We can amend the Constitution to join most of the world in barring birthright citizenship. There is no more important question in a republic than the definition of citizenship.
We are becoming a virtual mockery as we watch millions game the birthright citizenship system. China alone has hundreds of tourism firms that have made fortunes in arranging for Chinese citizens to come to U.S. territory to give birth and then return home.
No republic can last without controlling its borders and the qualifications for citizenship. We have allowed U.S. citizenship to become a mere commodity for the most affluent or unscrupulous among us.
The combination of open borders and open-ended citizenship can be an existential threat to this Republic. It is not that we cannot absorb millions of births, but rather that no republic can retain its core identity without more clearly defining and controlling the meaning of being a citizen.
The U.S. is and will remain a nation of immigrants. We welcome lawful immigrants who come to this country to embrace our values and our common identity. But being a nation of immigrants does not mean that we are a nation of chumps.
In my book, “Rage and the Republic: The Unfinished Story of the American Revolution,” I discuss the foundations of our republic and the world’s fascination with it. After our Revolution, one leading Frenchman known as John Hector St. John wrote a popular book that asked: “What then is the American, this new man?”
The answer to that question was obvious at our founding. We were the world’s first true enlightenment revolution — a republic founded on natural rights that came not from the government but God. We did not have a shared bond of land, culture, religion, or history. We were a people founded on a legacy of ideas; a people joined by common articles of faith in natural, unalienable rights.
The question is whether we can answer St. John’s challenge today. “What then is this American” if citizenship can be based on as little as a tourist visa or an illegal crossing?
There would be no better time to reaffirm the meaning of citizenship than the 250th anniversary of our Declaration of Independence. Roberts is correct: “It is the same Constitution” that created this republic, but we are the same people vested with the responsibility, as Benjamin Franklin put it, “to keep it.”
It is time to reclaim both the Constitution and our common identity. As a free people joined by a common faith in natural rights, it is our own birthright.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
Waste of time.
Hafta go look after all those birther babies.
I’m an American. My ancestors first arrived here in 1607. I want my country invaded, conquered, and taken over by people who are not Americans, people who were denied admission to obtain citizenship, and various and sundry other foreigners and illegal aliens, past and present. I want foreigners and illegal aliens to vote in my country. I want to give all my money and private property to parasitic foreign invaders as “free stuff,” “free status,” welfare, affirmative action, and governmental taxpayer charity. I want to give my country away. Those are my deepest longings and greatest desires as an unhyphenated and patriotic, actual American.
Love how leftys are losing it here everyday. Some topics really get them riled up. I come here for there moronic comments from them. TDS is entertaining. It’s like i can see the steam coming from their ears.
The American Founders codified citizenship.
The communists arbitrarily nullified the American Founders.
Their legislation will have to be necessarily and properly reimplemented by force.
_________________________________________________________________________________________
Naturalization Acts of 1790, 1795, 1798, 1802
United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof….
As Vice President and President, John Adams, who never owned a slave, signed this act.
Given that this country has evolved from loose or no immigration constraints to an elaborate protocol to enter into this country and become a citizen, clarity at the constitutional level would be welcome. I would hope that a formulation for an amendment could be found with 70% popular acceptance. The issue, however, will be the acceptance of such a formulation by the political parties which seem reluctant to digress from the extremes.
The Court has never considered whether children of illegal aliens or temporarily resident aliens are citizens under the 14th amendment if they are born here. To say that they are would be “an expansive, new interpretation.”
Much to my surprise, the government made a compelling case that neither the framers of the amendment nor the Court in past decisions resolved this question. To the extent analogous issues were raised, they appear to have been resolved along the lines suggested by the government. It was a Roosevelt administration State Department official who first adopted the “birthright citizenship” rules applied today, not the Court or Congress. This was an executive branch action that Congress acquiesced in, seemingly without ever actually considering the issue seriously.
To constitutionalise this position now, rendering change possible only through another amendment, would be a huge overreach and a usurpation by the Court of Congress’s Article 1 powers in this area.
It would be best for the Court to decide with the government here. That would be consistent with the original public meaning and with the leading Court case on the matter, which decided only in favor of a child of parents who were lawfully domiciled here — lawful permanent residents similar to green cardholders. This would preserve to Congress the option to extend citizenship to a more expansive class of people if it wished.
Alternatively, the Court could resolve the case against the government but only on statutory grounds, leaving the constitutional issue for another day. That would at least leave it up to Congress to adopt a more limited approach. If it did, that law would be challenged as the EO has been, but the Court would then have a heavier lift, given the united front of both the legislative and executive branches.
The worst result, and the least “conservative,” would be to constitutionalise the rights to citizenship of children of illegal aliens and temporarily resident aliens, in circumstances where this outcome is dictated neither by original public meaning nor Court precedent.
Well put. Today’s issue is also of scope. Far too many are being brought in without proper foundation. That is to say acceptance of and will to carry out the reason of our existence. Merely slapping a Made in the USA sticker on a foreigner does not add to the country. Additionally, the last great migrations, of the 1800s/1900s, still have not been fully assimilated either. Even though those people added to the country, there are still holes in their education and in their hearts, and as such, they fuel partly the ‘let them all in’ camp.
Birthright citizenship is to the children of naturalized citizens. It’s the immigration process, dumb as a bag of hammers.
^^^ADDITIONALLY the President must be a birthright citizen and I’d like to see all members of congress and federal judiciary as birthright citizens WHILE WE’RE AT IT. It’s unbelievable that members of congress are naturalized citizens. They would not be electable in the US even if not barred.
Were the founders touchy about foreign influences?
Gbye
^^^^ AND FINALLY DJT is in error due to permanent residents and the reason KIM ARK IS WRONG.
Use the fffing immigration process for BIRTHRIGHT and for all else.
I’M DONE and without any association with this dumpster fire
I’m surprised Turley hasn’t brought up Trump’s unhinged Easter Sunday Rant on Iran. Clearly he is not in control of the strait or the war.
I think what is most likely is that Roberts and a majority will attempt some sort of Solomonic cutting of the baby, giving each side some measure of a win and a loss. They might rein in birth tourism and maybe put in some other clarifications or restrictions on who the parents can be for a child born here to be considered a citizen. For example, children born of people who were members of terror or espionage sleeper cells. Maybe also restrict it for various classes of people here on temporary visas. But I would expect the current sitting justices will let children born of most illegals to be permitted citizenship. If for no other reason, Roberts and Barrett will likely prove to be very skittish on this.
Also, while I would support an effort for a new amendment on the meaning of citizenship as suggested by the Professor, getting such a proposed amendment through Congress will be hard if not impossible, and ratification by enough states also almost impossible. But, although it would take a long time, trying to get momentum toward passing such an amendment is worth the effort in my opinion.
If we actually had a functioning congress, they would take this matter up in a heartbeat. We are being invaded by people who hate our culture and our law, and want to replace it and us. We are not only allowing them to do so, we are funding it. Truly insane.
Migrants who come here from south of the border do not “hate our culture and our law” or “want to replace it or us”. That’s MAGA lies. They come here because they LOVE us and our culture and want to be a part of it.
OTOH, it’s MAGA that hates our culture and our laws–their leader is a narcissistic sociopath who lied to get into office by promising a precipitous drop in the cost of groceries, who imposed illegal tariffs, who started an illegal war, and who just can’t stop lying. You MAGAs do not speak for “we” or “us”. You are a distinct minority.
OMG. what a mixed-up, shook-up, little ignoramus, that gigi.
I love my neighbor’s property!
It has a beautiful garden, large lawn and a gorgeous mansion on it.
If I jump the fence and break in, do I have the right to stay there?
NO!
The Bible says “Do not covet.”
American Law says taking of private property without agreement of the legal owner is illegal.
Why is this so difficult to understand?
Is that why we call them Democrats?
Is stupidity a requirement?
Thou Shalt Not Covet
Thou Shalt Not Bear False Witness
Thou Shalt Not Steal
________________________
If people hadn’t coveted, there would have been no illegal alien invasion and no so-called civil rights legislation.
If people hadn’t borne false witness, there wouldn’t have been “fake” “asylum” “immigration.”
The hyphenates would have never stolen America if there hadn’t been “birthright citizenship” and “asylum immigration.”
You are making things up and you have TDS: No one has said those things. Certainly not MAGA. YOU said that! You would like to define MAGA yet you are living with TDS therefore your views are skewed. “MAGA that hates our culture and our laws” this is the proof of your TDS. MAGA is the majority. Do you remember the election or is your TDS blocking it. YOU are in the loser minority and whining about it won’t help you here.
MAGA is the future of America, Don’t like it? leave. a real american citizen does not feel the way you do. You are the weirdo here.
An article with Alan Dershowitz says ‘Congress shall have the power to enforce by appropriate legislation the provisions of this article.’ No if we had a functioning congress there would be no need for a court decision.
https://dailycaller.com/2026/04/01/alan-dershowitz-both-sides-missed-point-birthright-citizenship-supreme-court/
Immigration can be avoided by birthright citizenship or refugee asylum, especially birthright.
I also believe Caitlin Jenner is a gorgeous woman. A real woman unlike these horrible females like Iryna Z.
Rcs, so much smarter to avoid immigration completely and useless naturalization by utilizing birthright citizenship AND then I can become president. ☺ yay. I know I’m right!
^^^^ This is a very important point and you can’t tell me that a majority of the court isn’t intelligent enough to know the immigration process and what birthright means.
Citizenship is allegiance. No single individual may owe allegiance to two entities. No vassal or subject ever pledged legiance to two lieges; he would have been drawn and quartered for treason.
Mexico considers border crossers—their fetuses and their babies—”Mexican Nationals” who are subject to the personal jurisdiction of Mexico and subject to the full jurisdiction, personal and territorial, when they return to Mexico.
Illegal aliens—their fetuses and their babies—are subject to the jurisdiction of Mexico and are not subject to the unqualified full and complete jurisdiction of the United States.
No Mexican illegal alien and the children he holds jurisdiction over may vote or be called to jury duty.
Other countries must be held to the same logic as Mexico.
Citizenship based on allegiance does not change; visitors may be allowed passage in various forms.
“Subject to the jurisdiction thereof” means when the jurisdiction make a requirement on humans, those humans subject themselves to it and follow that jurisdictional requirement. “follow the law and you have rights”. They are Subject to that jurisdiction by abiding it. A lawbreaker is willfully not subjecting themselves to law. And so, breaking our jurisdictions’ laws by entering our country in illegal defiance of that jurisdiction, is a statement that the offender considers themselves outside that jurisdiction and are not subjecting themselves to it. It would be the opposite of a statement of allegiance (and fidelity). SCOTUS paying attention?
“Subject to the jurisdiction thereof” means,” Aninny.
“…subject to the [unqualified, full and complete] jurisdiction thereof….”
“Completely under its legal authority” or “Fully bound by and answerable to its laws” which is not the case for an illegal who, by law, is subject to the jurisdiciton of his country of origin and who may not vote or be called to jury duty and who is subject only to the partial “territorial” jurisdiciton of any country he illegally enters, prior to his deportation.
Jus sanguinas
Another daily affirmation piece for the disciples to deflect away from the daily disasters of Trump, his lies, the death and destruction he is causing in Iran and the vulgar-laden Easter post that managed to insult both Christians and Muslims. Where to start? First, why should there be any national debate on birthright citizenship is most Americans support it? Because that’s what MAGA media pays Turley to write about? Because that’s what that depraved lunatic racist Stephen Miller wants? I actually laughed out loud at Turley’s notion that we “need to consider the need”. Why? Turley argues that other countries don’t have birthright citizenship. As Justice Roberts pointed out, other countries don’t have our Constitution either. Because Project 2025 couldn’t abolish birthright citizenship via an Executive Order is not a valid reason to create a “need to consider the need”. Most Americans opposed Project 2025, which is why Trump lied about that being his agenda.
Turley claims, without anything resembling actual proof, that “millions game” the birthright citizenship system. “Gaming” a system implies an intentional bad motive–where’s the proof? The majority of those to whom birthright citizenship would apply are migrants who came here come for a better life for themselves and their families—not to “game” the birthright citizenship system. To refer to this as “gaming the system” is in accurate, inflammatory and racist and beneath a law professor. In support of his argument, Turley planted a link to a Dr. Phil interview and a piece from the WSJ about Chinese billionaires having babies born in the US via surrogates. These are outliers and nowhere near proof of “rampant abuse” that Turley claims exists. Use of the word “abuse” implies wrongdoing.
Then, Turley claims that Kavanaugh, Gorsuch and Coney are “principled justices”. They are radically conservative–during their confirmation hearings, they each lied about their position on whether Roe v. Wade was established law and whether they would abide by stare decisis just to get the power they abused to overturn this established precedent. Republicans cut off 25 or so people who wanted to testify about Kavanaugh. Turley argues against “updating the Constitution”–but that’s exactly what Trump tries to do when attempting to amend the Constitution via Executive Orders. The procedure for amending the Constitution does not include Executive Orders. Rulings like Roe v. Wade are NOT “updating” the Constitution–such rulings affirmed the Constitutional principles of privacy and liberty. The Constitution was written at a time when, for example, we didn’t have telephones. Because tapping a telephone could not have been anticipated at the time when privacy was enshrined as a Constitutional right does not mean that the government can tap your telephone without a warrant. The Constitution has bedrock principles–the instances in which it can be applied have to be fluid as time and technology change. Calling that “updating the Constitution” is disingenuous and beneath a law professor.
Turley cliams that that there is no more important question than citizenship. I beg to differ. There is no more important question than protection of individual rights and freedoms guaranteed by the Constitution–most especially the right to vote. Trump and Republicans are trying to pre-rig the midterms because they have done such a rotten job of governing that 2/3 of the country opposes them and their agenda. They are trying to choose who gets to vote, they lie about nonexistent widespread voter fraud, and are trying to curtail the right of states to allow mail voting based on nothing but their hunger to keep power by any means possible. Stopping them from trying to prevent eligible voters from casting their votes is a far more important question than birthright citizenship.
I thought I was reading fake news, and I was right.
Uh no, the Constitution has been amended too many times already. Congress and the Executive Branch just need to abide by it instead of ignoring it while paying lip service to its existence.
“It is doubtful that the drafters of the 14th Amendment could have envisioned millions of births to illegal aliens.” In 1868 they probably wouldn’t have understood the concept of “illegal” immigration, since the 1880s laws restricting immigration had not yet been passed. This argument is projecting our contemporary politics into the past. It is like asking if someone line Abraham Lincoln would be considered a racist in 2026: polemic and not especially useful for understanding the past.
Furthermore, lawmakers also debated the citizenship clause extensively, considering who would or would not be encompassed by it. In those debates, they were concerned about with expanding citizenship to Natives: not immigrants. Additionally, in the 1860s, the immigrant population of the United States was roughly 15%: comparable to what it is today. The idea that these legislators couldn’t comprehend high levels of immigrants who came and stayed for citizenship is difficult to sustain.
Finally, similar arguments could be made that the lawmakers who expanded white-male suffrage in the 1830s “couldn’t have envisioned” a population dominated by unpropertied wage-laborers (many of the legislators involved explicitly said this was impossible). Does this mean we should bring back property requirements to vote?
“If all earthly power were given me, I should not know what to do, as to the existing institution [of slavery]. My first impulse would be to free all the slaves, and send them to Liberia, to their own native land. [This plan’s] sudden execution is impossible. [Should freed blacks be made] politically and socially our equals? My own feelings will not admit of this, and [even] if mine would, we well know that those of the great mass of white people will not … We can not, then, make them equals.”
– Abraham Lincoln, Peoria, Illinois, October 16, 1854
“a republic founded on natural rights that came not from the government but God.”
Also 100% false. None of our rights are religious in nature, and not one is found in the bible.
Danny, you called it “100% false,” so let me ask you straight: do you at least think our rights come from the laws of nature and can be known by right reason, the way Jefferson framed it? If not, where do you think they come from? When human beings were living in a state of nature with no formal government at all, did they have any rights, or did “rights” only start to exist once some legislature or king decided to hand them out?
Rights come from people banding together and demanding them. That is not god, kings, or nature.
If rights only “come from people banding together and demanding them,” then they’re just whatever the loudest crowd says this year. That’s not rights, that’s permissions. A person alone in the state of nature who hunts, gathers, and defends himself doesn’t wait for a committee to “grant” him the right to do that; he exercises it because it’s his by nature. A slave didn’t suddenly get a right to freedom the day enough people demanded it for him; the demand just forced the law to recognize what was already his. The whole point of talking about nature (and for some, God) is to say a human being has a real claim to life, liberty, and conscience even when the crowd is wrong, silent, or hostile.
If rights are from nature, what does it mean when there is disagreement on what those rights are? Natural rights are not written down, there is no guide book. Who decides?
Natural rights aren’t decided. They just exist. Much like nobody decides 1+1=2. There is no disagreement on what those rights are, only if they are recognized.
Good comment Jim. There are two bedrock points underneath all of this. First, there are rights that exist by nature, the same way other facts of nature exist. We do not vote them into being any more than we vote gravity into being. Second, human nature is what it is, limited and imperfect, always has been and always will be. Our form of government is built on those two points. The whole “more perfect Union” project is an admission that there are real rights to secure and very flawed people, including the ones in power, who are tempted to violate them. Everything our government is supposed to do is about securing those natural rights against the realities of human nature, both in rulers and in the rest of us who keep putting them there.
Natural rights didn’t suddenly pop into existence in the 16th century, that’s just when people started talking about them in a way you’d recognize. Long before that, people were arguing that there’s a higher standard of justice than whatever the ruler says today. The Greeks were already talking about what’s “just by nature” versus “just by law,” the Stoics and Cicero pushed the idea of a universal moral law for all human beings, Christian thinkers like Aquinas turned “natural law” into a whole system, and early moderns like Grotius and Locke finally connected that to explicit individual “rights” before government. Magna Carta is one moment where English nobles forced some of those limits into writing against the king, and the American Declaration is where that long tradition gets boiled down into one sentence about “the laws of nature and of nature’s God” and “unalienable Rights.”
Read Professor Turley’s new book
Dan, he’s a pathological lair. Alright, he can’t source the nonsense he writes. Funny how all those so called natural rights never existed until the 16th century? Religious fanatics; like the Muslims. Where did they come from… the bible? Seriously, you wanna argue that? Then lay it out here… show us the proof.
Rights are inherent. If someone comes along and trys to assault me or take me stuff, see what happens, nature takes over. Nature gave me many physical and mental attributes and even an intuitive natural instinct to maintain my rights. Humans more than any animal, as we’ve got craftyness to protect ourselves. It’s naturally inherent in animals too when they automatically fight for their life, territory, young and whatever else they decide is worth it. the origins and nature of nature has been in contention, but not the rights.
What you just described is exactly what I mean by rights that exist by nature. Nobody had to vote to let you fight back when someone attacks you or tries to take your stuff. You know you can do it, and so do they. That built‑in instinct to preserve your life, your body, and what is yours is the raw material behind all this high talk about “natural rights.” Philosophers later gave it names and theories, but the basic thing you are describing has been there as long as human beings have. The real question for politics is whether our laws recognize and protect that reality or pretend it only exists when somebody in power says it does.
Simply close immigration, PT. The US has all the citizens it needs. It doesn’t say the US SHALL have immigration. It can if it wants or close it. It’s freedom , PT. It won’t matter then will it.
It’s absurd and the founders were so much more intelligent than what is today walking the halls. It’s not magic.
The magical thinkers- For any reason, legal, illegal, one day or 50 years present, to anyone everywhere the ALTERNATE route to immigration is the magic of birth. Get rid of immigration and only birth is acceptable. Parents deported.
Rachel Levine is an honest to God woman, I’d swear to that fact.
^^^ IN FACT go get all those citizen children taken to China! Our citizens were kidnapped.
I deny any association.
“The combination of open borders and open-ended citizenship can be an existential threat to this Republic. ”
This is bigoted BS of which we have 250 years of evidence to the contrary.
Also we have never had a Constitutional amendment designed to hurt people. I sure as hell don’t want to start now.
Danny votes. The problem becomes clear.
The biggest deporter in the 21st Century (so far) was Barack Obama, not Trump.
Obama largely focused on deporting immigrants already convicted of violent crimes and many already in prison.
Obama’s policies were more constitutional, more humane and followed the Judeo-Christian faith, unlike Trump’s inhumane policies deporting 5-year olds and the guy putting the roof on your house.
Maybe Obama could mentor Trump and teach him about American government and Judeo-Christian values?
…”given more than a century of countervailing precedent…” There’s the problem, Professor. When precedent doesn’t answer the original question clearly, in this case, should the children of lawbreakers automatically receive citizenship ‘just because’, then punting to the century of precedent will not solve the question, either. I thought Sauer’s argument was far more insightful regarding the 14th and the people who debated it than the opposition’s: “Because we’ve always done it this way” for the simple reason it doesn’t actually answer the same question… why should the law breaker’s children reap the benefit of citizenship – not to mention the “free stuff” they’re really here to collect? Just like bank robbers can’t give their kids the money they stole, I don’t see the rationale for “awarding” people whose only reason to break the laws of our country is for their kids to benefit.
Civilized countries do not put upon the children the sins of their parents. Also the notion of denying citizenship to children because their parents are criminals is absurd and not the law in any peer country, or any county that I know of.
BECAUSE THE FOUNDERS WERE SO STUPID, CITIZENSHIP IS A GAME OF TAG, JAFO. IT’S MAGIC, JAFO. IT’S FFFING MAGIC.