Below is my column on Fox.com on the birthright citizenship case. Republicans in Congress have already submitted legislation for both a new constitutional amendment and specific bars on birth tourism. The legislation will obviously move more quickly and, if challenged, could give the Court another opportunity to address the issue. However, the most direct way of addressing the issue remains a 28th Amendment.
Here is the column:
Today, Folarin Balogun secured a spot on the American soccer team for the World Cup…for a second time.
That may be the most positive spin I can offer to those upset by today’s 5-4 decision in favor of birthright citizenship. Balogun, one of the stars on our team, was born to Nigerian parents visiting the United States and then raised in England.
According to the Supreme Court, he is — and was always intended to be — a citizen under the Fourteenth Amendment.
It is a conclusion that divided the court 5-4, but, as in soccer, a one-point win is as good as a nine-point win.
Roberts wrote for the majority that “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
The victory for birthright citizenship was due to the joining of Chief Justice John Roberts (who authored the decision) and Justice Amy Coney Barrett with the three liberal justices. They found the language and history of the amendment to be clear and, relying on prior rulings dating back decades, concluded that birth alone in this country is enough to confer citizenship — even if born to a tourist or someone briefly on our soil.
It is a view that is rejected by the vast majority of countries, which rightfully view birthright citizenship as bonkers, including some which followed the practice and then rescinded it. The United States remains one of the outliers in maintaining this ill-considered practice.
Justice Clarence Thomas wrote a dissent, joined by Justice Neil Gorsuch, effectively arguing that this is the invention of the Court, which refused to reconsider its lazy prior analysis. That included the Court’s 1898 ruling in United States v. Wong Kim Ark, which expanded birthright citizenship beyond what the Reconstruction Congress had ever “contemplated.” He noted that the Court could have resolved the case on narrower grounds consistent with the 14th Amendment: “Wong Kim Ark addressed only the citizenship of a child born to parents who were lawfully and permanently domiciled in the United States.”
The 5-4 decision unleashed another furious broadside on social media against Barrett, particularly after she authored the 5-4 decision on mail-in ballots again, this time with Roberts and her liberal colleagues.
Barrett hit a nerve as one of the three Trump appointees, whom many hoped would be more in the vein of Alito or Thomas. Instead, she often writes with Roberts.
The attacks on Barrett ignored that there are good-faith arguments on both sides of the birthright citizenship case. They also ignore that she regularly voted with the conservatives and for positions of the Administration. For example, she voted to support states in requiring transgender athletes to compete with their biological sex. She previously was the most vocal justice in rejecting transgender status as a protected class akin to race or religion.
President Trump has lashed out at his nominees over their adverse rulings. However, they remain one of his most impressive and positive legacies. President Trump said that he wanted independent and principled conservatives. He got them in Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They are all extraordinary jurists who have dramatically elevated the Court’s intellectual discussions.
When I testified at Gorsuch’s confirmation in the Senate, I told the senators that they were wrong to pigeonhole the nominee: he would go wherever his convictions took him. That has proven to be the case, and it is a great credit to Trump that he selected such independent minds.
On birthright citizenship, the matter now rests not with the court but the country. We have never truly had a national debate over the practice. The basis and future of birthright citizenship have remained matters almost exclusively for the courts.
We must now decide whether to pursue such a debate as a constitutional amendment.
While Congress can pass legislation cracking down on birth tourism, there is only so much that such laws can do in questioning why particular births occurred in the United States, such as the birth of Balogun.
I can think of no more appropriate debate to have as we celebrate our 250th anniversary than what it means to be a citizen of this unique republic.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
Without reading the Robert’s opinion, the solution seems quite clear to me. If persons born in the US do not remain “subject to the jurisdiction thereof” and “reside” in a state, then they should automatically lose their brief American citizenship as a matter of “due process.” However if, in the absence of that kind of reasoning by the Court as I’ve previously suggested on the professor’s blog, illegal aliens and temporary visitors should not be allowed to deprive new citizens of their constitutional rights and privileges without due process of law; confiscate the babies and put them up for adoption by American citizens eligible and wanting to adopt and raise children. As to “relying on prior rulings dating back decades,” to me that is “bonkers.” Every SCOTUS ruling should be based upon a fresh strict and literal interpretation of the original applicable provision of the US Constitution. As a former industrial electrician who perceives the US Constitution as a much simpler “system program” than many I worked with in various light to medium US industries spanning some three decades, if US industry ran like the US legal system it would be nearly impossible to troubleshoot breakdowns in a timely manner, meet production schedules and stay in business. Charles G. Shaver/CGS
The founders had no say on the 14th amendment.
It’s all made up after that.
What’s a good amendment after the 10th? Can’t think of any.
The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land’.
The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person domiciled in this land’.
The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person on vacation in this land’.
Yeah. Real clear.
I would love to hear how Justice Thomas’s theory would address the citizenship status of illegally smuggled slaves following America’s ban on the importation of slaves in the Antebellum period. They illegally entered the USA, and thus were not “domiciled” here per Thomas. If the 14th Amendment’s purpose was to clarify the citizenship of all Black Americans at the time, how could his theory address the large number of smuggled former slaves?
Seems like a pretty big hole in the theory.
I don’t think Thomas resolved whether children of someone who arrived illegally but is otherwise domiciled in the US would have birthright citizenship. He focused instead on temporary visitors. Gorsuch too left this open.
The court overreached here by resolving the constitutional issue. Kavanaugh explained how the EO could be considered to have violated the statute. The constitutional issue could have been deferred until such time, if any, as a new law was passed and challenged. By not taking this route, the court foreclosed a legislative solution, relying on a contested interpretation that only had a 5-4 majority.
Having read the opinions it seems pretty clear that something more than mere birth in the US was required to confer citizenship. Whether it was domicile, as Thomas argues, or the absence of competing claims to loyalty/jurisdiction, as Alito posits, or some combination of the two or something else, could be debated. But to prevent Congress from passing a law in this area, especially as to temporary visitors, given the constitutional uncertainties, is an extraordinary act of judicial hubris.
If you are fair and honest person, would you have supported Barack Obama on his day of signing an executive order to abolish 2nd Amendment gun rights or an EO to abolish 19th Amendment women’s voting rights? That’s the dangerous precedent Trump created.
Abolishing gun rights, women’s rights or birthright citizenship requires the constitutional amendment process. The Founding Fathers wanted this to be a long hard process with lots of study and lots of debate. Not easy to do by design.
Wouldn’t a better plan be for Congress to create a law that gives preference to native born Americans at a good wage, but if they can’t hire enough employees allow the employer to hire new immigrants. Wouldn’t that really solve the problem.
Native born Americans get first priority over documented non-citizens.
There are jobs like roofers in Arizona working in extreme heat near 120 degrees every day, that many of us couldn’t do even if we wanted to. Workers born near the equator have better heat tolerance than other workers. If those jobs are vacant it inflates the cost onto the consumer.
In the 1960’s anti-immigrant groups tried this experiment and it failed. They tried to hire American high school students to pick fruits in 100+ degree fields all day. Only a small fraction showed up on the first (failure from day one) and most quit within 2 weeks. This was the anti-immigrant groups experiment.
Wouldn’t a simple law by Congress solve this issue in a humane Judeo-Christian manner?
I believe that the whole case should have revolved around the Native American issue. They were not considered citizens, regardless of where they were born until June 2, 1924, when the Indian Citizenship Act was signed into law by President Calvin Coolidge. This act declared that all noncitizen Indians born within the United States are citizens of the United States. So if for over 50 years people viewed as citizens of another country (their reservations) but born on US soil (in some cases) were not citizens, why are children of illegals citizens? Does this not show the intent of the authors of the Amendment?
re: JP Manfred
It’s a very clear worded constitutional amendment. This week’s U.S. Supreme Court ruling actually explained the originalist views when the 14th Amendment was written.
At first, the draft wording written by Senator Lyman Trumbull spelled out only African-Americans had birthright citizenship.
Most politicians seek the path of least resistance, Trumbull intentionally designed the birthright citizenship for everyone born here.
This week’s opinion using the 1800’s wording:
“In the face of virulent anti-immigrant – and in particular, the anti-Chinese and the anti-Romani – sentiment of that era, language targeting just freed former slaves would have been the path of least (or less) resistance. But Senator Trumbull, along with those colleagues who took up the same mantle during the ratification debates, expressly rejected that narrow framing”
For anyone claiming to be an “Originalist” this was the originalist view in the 1800’s. The big question everyone should be asking is why it wasn’t 9-0 unanimous ruling? Were the so-called “Originalists” incentivized by money or gifts to vote the other way since this was the original debate when ratified? Do we need rules of ethics on the high court?
John Roberts longwinded, pedantic, legalistic grave-digging takes us back to the era of Shakespeare (English common law). He borrows norms of citizenship from an era where the average person ventured only 50 miles from their place of birth — and force fits it to a time of jet-age mobility.
Do any of you see his shallow scholarship in failing to cite The British Nationality Act of 1981? That is the most current generation of English law on the topic. It got rid of birthright citizenship.
Is it possible this “history and tradition” legal standard is a bit too elastic?
You do realize British law in 1981 would not affect the “history and tradition” of America’s foundation on 18th century British law right?
John Roberts continues to be one of GW Bush’s biggest blunders – he cares more about the reputation of the court than the republic and the Constitution it serves. Remember how he transformed ObamaCare fees into a tax so it could pass muster? He made that one up. And Amy Coney Bonehead rarely fails to disappoint. She and Roberts completely missed the point of election DAY. A ballot is not “cast” until it is received – and if it is received after election day it should be void. And then there’s the suicide provision of birthright citizenship. Let’s hope our 250th birthday isn’t the last.
I agree: it would be a great thing to debate. The modern left will not engage in that, however, nor anything else ethical or respecting the rule of law. I fear they are about to unleash destruction the likes of which we have never seen. They are insane, and they are in league with regimes. We have a few months remaining to decide unequivocally to save our country. Anyone with their eyes still closed needs to snap put of it, and fast.
*snap out of it
If the Left was insane they would act in a manner that was insane and slaughter anyone with a MAGA hat.
Has that happened? Is there wholesale slaughter of those who wear MAGA hats? It is more likely the Left is quite sane and doesn’t need to put on a hat because their solidarity is in a sense of community and doing what is correct rather than doing what is cruel, as those on the Right often cheer for.
Four assassination attempts on Trump, one well planned and nearly executed attempt on Justice Kavanaugh, a successful assassination of a man simply because he was the CEO of an insurance company, and the successful assassination of Charlie Kirk – for an insane reason. Then there’s the alignment of the left with terrorists who slaughtered hundreds of innocent Israeli citizens.
Stop the unearned moral preening. Your side values killing preborn children and chopping the genitals off teenagers.
The Left is, in fact, insane. As are you for aligning with it.
Well what was a cheap and easy method to fill up a mostly empty (obviously they overlooked the natives already here) county 250 years ago has come full circle as an easy way to get citizenship for the worlds greatest country. The Pols can always start the Amendment process if desired and as intended by the founders to ‘adjust’ the basics! Good luck with that!!!!
The Amendment was made less than 250 years ago.
This decision makes America look foolish and dysfunctional. We’re Johnny-come-lately on jus solis reform.
Why not begin by studying the process other 1st world democracies went through a generation ago? I bet Trump couldn’t even name 3 countries that got rid of automatic birthplace citizenship — and that merely suggesting Republicans study foreign success before going any further would ruffle feathers.
When you’re trailing the pack and want to catch up, it’s the height of prideful stupidity to assert “we have to figure this out ourselves”. I take that to mean, “We’d rather pointlessly fight each other than get anything meaningful done”.
Silly: I wonder how many people who support birthright citizenship are aware that between 750,000 to 1.5 million Chinese nationals are estimated to hold US citizenship because of birthright citizenship.
I first heard about “birth tourism” several years ago. Well over a decade, probably closer to two decades. I figured once it was publicized Congress would end it. Because it’s insane. Nope.
In one year, 2012, 10,000 Chinese women came here to give birth to obtain US citizenship for the child.
The Obama administration actually made it lawful for Chinese to visit Saipan – a city in the American territory of the Northern Marianas Islands – without a visa to support tourism and gambling industries in Saipan. Before the 2009 rule change, 8 foreigners gave birth in Saipan. Since then 6600 Chinese nationals have.
It’s insane.
https://www.congress.gov/119/meeting/house/117827/documents/HHRG-119-JU01-20250122-SD005-U5.pdf
Policy argument for sure. But you do realize that only judicial activists rely on policy rather than the law to inform legal opinions…
This is no different than the BS opinion from the liberals in the Al Otro Lado case.
Unfortunately, neither Congress nor the public will act until it is way too late. China could literally install a million citizens in any city in America, in a couple of decades, never having lived in the United States and educated on a steady diet of anti-American, anti-Western, pro-Chinese dictatorship propaganda. They could join the military. They could run for the presidency. If you think China isn’t scheming, you’re naive. Congratulations to everyone who wants to “fundamentally transform the United States of America.”
You still haven’t make a rational point.
You need to read more since the post you are questioning is very clear.
Clear you say? Amazing that you can read into an irrational comment.
It’s perfectly clear to anyone but an intentionally blind moron:
1. Red China is intent on subverting the international dominance/influence of the US by any means feasible
2. Birthright citizenship is a means that could be effectively used to undermine the controls on elective politics implemented in the Constitution, given the introduction into the US of a sufficient number of new voters who have in common the exclusive interests of a foreign power
2. Red China has more than enough people completely brainwashed into believing in the superiority of Red China to take advantage of lax US immigration and voting regulations and overwhelm our voting process to their exclusive advantage, facilitating their goal as stated in item #1
incorrect numbering – last point should be #3
Self reflection is good for growth.
Self reflection is good for growth. Try it. You did? Nothing huh? Thought so.
Only when it is confirmed that Chinese residents, born here out of birthright tourism, are skewing our elections will they take action. Save for making birthright tourism unlawful, It might be wise to begin monitoring their travel. Have no confidence that we will ever see a 28th Amendment.
According to the progressives, it doesn’t matter whether one is a citizen or not. I both have the same rights.
Isn’t the Constitution great!
Isn’t this what the Supreme Court really said? As with a lot of our decisions over the centuries, we’re split 5/4 because we really don’t know what the law says about birthright citizenship?
Centuries? Don’t know? What drugs are you taking this morning?
That will not happen. At least half the country likes birthright citizenship the way it is. Also it would be a disgrace to the nation to pass an amendment that does nothing but hurt people.
Yet you failed to show any proof sally.
By they way. Fools like yourself keep saying Prez Trump is a dictator. If so, why didn’t the high court go his direction?
Yet you failed to show any proof dustoff. As usual.
OK.. Then you post the truth.
Fire away.
Truth? You made the comment dustoff. Not anon.
If so, why didn’t the high court go his direction? Um… dustoff? Translate that into American English.
So is he a dictator or not.
Jezzzzzzzzz,
Anonymous has a difficult time in expressing thoughts, that is, unless he wants a tirade to other readers.
phantomboldly5cb0d04b6f has difficulty expressing thoughts. Because he doesn’t have any.
Is he or isn’t he? You made the statement dustoff, support it. Impress us with your deep intellect.
Dictators don’t always have full support. However, dictators do ignore the detractors and act how they want. I see that Putin, for example, is having trouble getting his army to defeat Ukraine, but he has worked to eliminate objections to his war. In a parallel construction, Trump no longer refers to the war against Iran as a war, in an effort to avoid the War Powers Act. He’s a stupid dictator still in the process of consolidating power, but heading to becoming a full fledged one. Note the use of National Guard to protect the water in the Reflecting Pool. Military force used against citizens. Step one in dictator school.
His point went right over your head Sally
Yeah, the illegal half.
Define “hurt people.” sally.
Re: “That will not happen!”
That any citizen of the United States of America would render unto a non-citizen the rights and privileges afforded to individuals through citizenship is mind boggling and pathognomonic of the socio-political and cultural divides tearing the fabric of this nation apart. There are those who would manipulate and reimagine the electorate for permanent socio-political gain. Such is at the core of a current controversy. The ‘Save Act’ is a beginning, yet far too limited. The Right to Vote in local, state and federal elections should be afforded to Citizens Only. Any individual, political party, local, state, or federal agency acting in any fashion to support or permit otherwise is an anathema and an existential threat to the integrity of this Constitutional Republic .As example, voter registration MUST BE SEPARATE AND APART from the licensing of individuals to operate a motor vehicle, in that non-citizens are being so licensed in many jurisdictions. INCONTROVERTIBLE PROOF OF CITIZENSHIP should be required and mandatory to secure the right to vote, and the privilege and entitlement to citizenship in these United States of America carefully measured.
So, kill quasi-Americans?
You’re implying that being born Brazilian, Turkish or Chinese rather than American is a form of deliberate injury. That’s so condescending and insulting.