Get the Dirt on "Jus Soli"

Prediction: The 14th Amendment is Going to the Supreme Court

Happy Liberation Day! I hope you have your helmet on, because we’re going to go through some exciting times. One of them involves deciding who is a citizen. You’d think a smart nation would have worked that out in a couple of centuries, but here we are.

Americans have the curious and sometimes endearing trait of being ignorant of everything outside the United States. I first discovered birthright citizenship was not universal in the 1970s when I learned that Turkish guest works living and working in Germany were not citizens, nor were their children who were born in Germany. The legal term for this is “jus soli” which means “law of the soil.” If you’re born on a certain soil, you can claim the citizenship of that nation.

There are close to 200 nations on earth and only 33 have true birthright citizenship and a few more have a modified version of birthright citizenship. The United States, Canada, Mexico, Central America, and most of South America have birthright citizenship but it seems to be a Western hemisphere kind of thing. Move over to Europe—nobody has it. Neither does any nation in the Middle East or Asia. However, two nations in Africa offer birthright citizesnship (Lesothoi and Tanzania).

In France, you can be a French citizen if you’re born in France providing that at least one of your parents is a French citizen. Same with Russia and Australia, but the Aussies make an exception. If you are born in Australia and live the first 10 years of your life in Australia, you qualify for citizenship even if your parents are not Australian. Chinese nationality laws are too complicated to explain, but a born-and-bred Chinese person can actually lose citizenship simply by residing outside China for a prolonged period of time. China does have a naturalization process but it is long and difficult.

Birthright citizenship came late to the United States. It was introduced in 1868 in the form of the 14^th Amendment to the Constitution. The purpose at the time was to make sure that the liberated slaves of the nation were recognized as citizens. During the slave years, their status even as full human being was challenged, and they were certainly not given the rights and privileges of citizenship. All that changed after the Civil War, but the Union was fearful that some states in the bygone Confederacy might still not see former slaves as full citizens. That brought about the 14^th Amendment.

Here is the full amendment but of interest to Trump’s recent Executive Order is just the first sentence.

“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.”

Some people read this and interpret it to mean that all persons born within the United States are citizens. Where you’re born confers citizenship, at least if where you’re born is in America and you want to be American. But the law has a very precise way of dealing with language and there is a puzzling and contentious section that adds you have to not only be born here (or naturalized here—but that’s different), you have to also be subject to the jurisdiction of the United States. You have to be under U.S. law.

Right out of the chute, the 14th Amendment was problematic. Like much of U.S. law, this well-meant amendment turned out to be detrimental to Native Americans. In 1884, the Supreme Court case of Elk v. Wilkins ruled that children born on Indian reservations under tribal governments did not meet this requirement and, therefore, these Native Americans were not citizens. Congress (being as speedy as they ever are) jumped into action and 40 years later came up with the Indian Citizenship Act in 1924, making Native Americans U.S. citizens. But this determination was specific to Native Americans.

What is meant by the “subject to the jurisdiction thereof” part? Some people say it doesn’t mean anything, but that is a woeful and self-serving interpretation of the law. When it comes to the law, everything means something. If just being born on U.S. soil granted you citizenship, why add that phrase? And perhaps more importantly, who does this clause exclude?

Back when the 14^th Amendment was ratified, we lacked the transportation systems we had and our jet-setting globalized mentality. Today, people travel easily and often to foreign nations. People work abroad at times or go there to study. It’s not unusual to meet children and young people who have traveled internationally. In America, we routinely and normally associate all of the time with people born in Asia, Africa, Central America, Australia, Europe, and everywhere else. Back in 1884, nobody imagined the rise of “maternity hotels” in California where women, typically from China, could travel in the late stages of pregnancy, reside there, give birth, and then return home with a brand-new baby American citizen. The mother could then take the baby home to China and, as an adult, he or she can claim an American passport. So big is this industry, it even has a name: it’s called “birth tourism.” Ten years ago, it could cost a woman upwards of $40,000 to give birth on U.S. soil at one of those hotels. While the federal government closes in on these rackets and shuts them down from time to time, they haven’t completely disappeared.

Now imagine this scenario. Let’s say the dictator of North Korea (Rocket Man) has a nefarious plan. He finds several North Korean women who are soon to give birth and he sends them all to the United States. They are taken in by one of these birthing hotels and they have their children in America. Then mothers and children return to North Korea, where Rocket Man personally educates those children to be ardent North Korean communists. They are educated well and raised to hate America. They are taught English and sent to the United States as university students. And they move there to infiltrate our universities, institutions, political organizations, or whatever. They’re free to live and work in America; after all, they have a U.S. passport. They could even run for President.

Sounds far-fetched? Look how many in our Congress are foreign born (answer: 81 were born outside the United States or have at least one parent who is a foreign citizen, that’s 1.5%). Many of them are naturalized citizens and so able to run for office, and America is exceedingly accepting of foreign-born people. This is a good thing, but it’s the sort of virtue you have to be smart about.

It’s kind of like wanting to help the poor. That’s a wonderful virtue until you’ve given away all of your money.

Let’s look at Kamala Harris. She’s what they call an “anchor baby,” born in the United States to illegal immigrant parents. Kamala’s parents were both highly educated individuals, but they were on expired student visas at the time, which meant they were technically illegal. Mr. and Mrs. Donald Harris (her parents) were not subject to the jurisdiction of the United States. Not that they likely paid taxes as students on expired visas, but had they had income to declare, they would have been taxed by other nations. Had Jamaica had a draft, Kamala’s father could have been drafted by Jamaica, but he could not haven been drafted by America. He was not under our jurisdiction.

Does this mean Kamala is not really a U.S. citizen? That would depend on how you interpret the 14^th Amendment. She was born in Oakland, California, but her parents were not under the jurisdiction of the United States. And that’s the sticky wicket.

Some people, liberals mostly, are screaming that Trump’s recent Executive Order (EO) doing away with birthright citizenship is not reasonable because Constitutional amendments require a different process to change. As usual, liberals are missing the point. The point is to challenge the way the 14th Amendment is currently interpreted in this age of mass migration. Besides,Trump’s argument is not that we need to change the 14^th Amendment, only that we need to interpret it properly.

Trump’s EO is going to kick this up to the Supreme Court, and it’s high time. The Supreme Court has never to my knowledge entertained this specific point. What does it mean that you have to be born on U.S. soil plus you have to be under the jurisdiction of the United States?

Trump, as President, is making the indirect demand that we need to parse out what the wording in the first sentence of the 14^th amendment actually means. I heard a reporter yell out a question to him, asking him if he thought his EO would stand.

You gotta love Trump’s answer. “We’ll see.”

He is simply asking that the Supreme Court analyze this clause, particularly in light of the ease by which babies can be born anywhere a mother with money wants them to be born.

This might very well have impacted Kamala’s citizenship, but she could have always chosen to become a naturalized citizen. However, it would have made her ineligible to run for the White House, since presidents have to be born here. Elon Musk, for example, was born in South Africa; he’s a naturalized U.S. citizen but he can never become president.

Would this have impacted Barack Obama’s eligibility as president? That’s a trickier issue for another day.

It should be noted that the 14^th Amendment makes a generous provision that people born outside of this country can be naturalized to become U.S. citizens. That’s a good thing, and we naturalize lots of people every single year. China doesn’t release the numbers of people it naturalizes, but some sources suggest it is close to zero. A nation that limits how many children a woman might have is not exactly recruiting for more adult citizens.

The question Trump launched by this EO is whether or not you can shortcut naturalization if you just managed to get born on American soil.

The problem, I suspect, haunts liberals since, by definition, citizenship is a process of “exclusion.” That core canon of liberal theology, “inclusivity,” is antithetical to citizenship. If your citizenship criteria emphasize inclusion, you dilute the value of citizenship. If everybody can be a citizen of your country, what value is citizenship? Dual citizenship, which is permitted in the United States, is a strange concept (we even allow people to have three citizenships like Ghislaine Maxwell who is French, British, and American).

Seeking clarity on this issue and recognizing a new value—that of exclusion and exclusivity—is important. Welcome to 2025, and Happy Liberation Day!