Most Americans of a certain age are familiar with Bruce Springsteen’s iconic 1984 political protest song, “Born In The USA.” But those very same words about being born in America are at the heart of a different, more recent and far more important political and constitutional controversy – birthright citizenship.
So-called birthright citizenship is the practice of bestowing citizenship on any person born on American soil. To the left, it is a guaranteed constitutional right that cannot be questioned. They point to language in the 14th Amendment that says, “All persons born or naturalized in the United States” are automatically citizens of the United States. To that they add that the US Supreme Court has already settled this issue more than 125 years ago.
But here’s the rub: the lefties are wrong. Their position, as broadly accepted as it may be, simply does not comport with either the text or the history surrounding adoption of the Citizenship Clause, nor with the political theory underlying the Clause.
And what perhaps infuriates them more than someone challenging their reserved wisdom about birthright citizenship is this: The challenge is coming from two individuals despised by the left, people they have spent years and countless millions trying to ruin – President Donald J. Trump and his former lawyer, me, John Eastman.
My legal scholarship and writings are at the center of the new push to end birthright citizenship, a push aided immensely by an Executive Order issued by President Trump immediately upon his inauguration as America’s 47th President.
I’ll get into the birthright citizenship issue below, but first I need to ask for your help.
The lawfare left has done their best to try to ruin me, but they have not succeeded — yet. I’m going to need your financial help, though, if I am to continue to preserve my freedom and position in the legal community. I’ve already incurred over $1.5 million in legal bills trying to fend off the lawfare assault I’ve faced, and my defense fund is almost out of money. Please make a generous donation to the John Eastman Legal Defense Fund so I can continue to fight for my freedom, not to mention the rule of law and originalist constitutional principles.
The Citizenship Clause of the 14th Amendment was proposed by Congress and ratified by the states. It provides in pertinent part, “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.” (emphasis added). It is that “subject to the jurisdiction” clause that the left likes to ignore. The Democrat Senator from Hawaii, Mazie Hirono, even claimed on her twitter/X account recently that the Constitution is clear. “All persons born or naturalized in the United States…are citizens of the United States and of the State wherein they reside,” she wrote, eliding over the key language. But ellipses cannot erase the actual language of the Constitution.
The purpose of this language was two-fold. First it was intended to correct the horrendously wrong 1858 US Supreme Court decision in the Dred Scott case that found that no African-American, free or not, was or could ever be a citizen of the United States. Second, it was to establish the circumstances by which the child of a slave or others owing allegiance to the United States, would become citizens.
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To the modern ear, subject to the jurisdiction is synonymous with subject to the laws of the US. Under that reading, anyone born on US soil, even if here temporarily or illegally, is a US citizen entitled to all the rights and privileges of citizenship. This is exactly the position of the left.
But constitutional law, properly understood, requires one to interpret the text as it was originally written and intended. In that regard, subject to the jurisdiction could not have meant subject to the laws, because every person in the United States (except diplomats), citizen or not, is subject to the laws of the country while they are present within our borders.
The US Supreme Court dealt with this clause in 1873 in the Slaughter-House Cases and agreed that it did not mean merely that an individual was born on US soil and subject to US laws. They found that the main purpose of the amendment “was to establish the citizenship of the negro,” and then noted that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
This understanding of subject to the jurisdiction was later affirmed by the US Supreme Court in the 1884 case of Elk v Wilkins, which found that an Indian born in the United States into an Indian tribe who later renounced his tribal affiliation was not a US citizen because he was not “subject to the jurisdiction” of the United States at birth, which required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” At birth, John Elk did not meet the jurisdictional test because he owed allegiance to his tribe.
Unfortunately, the clear and, I believe correct, interpretation of the jurisdictional requirement for citizenship found in Elk and in Slaughter House, was later partially rejected by the Supreme Court in the 1898 case of United States v Kim Wong Ark. In that case, the Court found that “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, were subjects of the Emperor of China, but have a permanent domicile and residence in the United States,” was, merely by virtue of his birth in the United States, a citizen of the United States as a result of the Citizenship Clause of the Fourteenth Amendment.
An Eastman critic (of which there are many on the left) might say that the Wong Kim Ark case settled the matter forever that being born on US soil no matter the circumstances conclusively establishes citizenship. But as is often the case, the Eastman critic would be wrong. As was the majority in Wong Kim Ark.
The majority that decided the Wong Kim Ark case was virtually the same majority that decided the ignominious Plessy v Ferguson case that established “separate but equal” as a justification for maintaining racial segregation. Plessy ranks along with Dred Scott as the most reviled and wrongheaded decisions in the history of the US Supreme Court. A court that could reach that disreputable conclusion is, I would contend, entitled to no deference in their reasoning on birthright citizenship.
The Court’s reasoning in Wong Kim Ark is chock full of errors and faulty judgement. It’s too nuanced to review in detail in this forum, but below I link to a law review article that provides a detailed discussion of why the case was wrongly decided.
But even if it was rightly decided, it was limited to children born to parents who were lawfully and permanently “domiciled” in the United States. The case did not involve children born to temporary visitors (such as those present here on student, work, or tourist visas), and it certainly did not involve children born to parents who were illegally present in the United States. And contrary to the shrill attacks against President Trump’s executive order coming from the left, the Supreme Court has NEVER held that the children born on U.S. soil to temporary visitors or illegal aliens are citizens.
Suffice to say that President Trump’s Executive order on birthright citizenship, one based on my (and others) legal scholarship, is perfectly consistent with the original meaning of the 14th Amendment — the child of an illegal immigrant who is born on US soil (or a child born to someone here on a student or temporary visa or similar non-permanent status) is not by right a US citizen.
This is an issue destined for review by the US Supreme Court. I hope that by that time I will have defeated the lawfare assault against me which, among other things, has resulted in my law license being put on “inactive” status as a result of a biased California Bar judge recommending that I be disbarred. I would like nothing better than to once again represent President Trump and argue this matter before the US Supreme Court.
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In the meantime, I must concentrate all my energies on defending my good name and fight for my livelihood and freedom in the three lawfare-motivated and politically-weaponized cases I am still facing – the ridiculous disbarment recommendation in California, and the falsely alleged criminal charges in Arizona and Georgia.
I’ve had to raise and spend over $1.5 million thus far, and am looking at needing that much again, or more, before all is said and done. That is why I humbly hope and pray that you are able to make a donation today to my legal defense fund of $25, $50, $100, $250 or $500 or more.
The radicals who make up and fund the lawfare left thought that they could destroy my reputation by their assault against me, and make my legal scholarship radioactive as a result. But with your help, they are going to fail on both counts. Thank you for whatever you can do to support me at this important time.
Sincerely,
John Eastman
Constitutional Scholar
Former Attorney for President Donald Trump