# What is the legal reasoning that 'allows' ending birthright citizenship? **URL:** \ **Category:** Politics & Elections\ **Tags:** trump\ **Created:** [January 24, 2025, 4:16pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335 "2025-01-24T16:16:05Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 1, 2026, 3:28am UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/221 "2026-07-01T03:28:06Z")
Obviously, the decision was based on the Fourteenth Amendment. The dissents were also based on the Fourteenth Amendment. It would not do to answer the OP by saying, “based on the Fourteenth Amendment” without going deeper. The whole question is whether and how the Fourteenth Amendment protects birthright citizenship. I do not claim that feudalism and common law are the sole basis for the decision. The majority cites these principles as the philosophical rationale behind birthright citizenship. The majority also bases its decision on later history and precedent. This is my claim, in context: > [@Chronos](#): > > > [@PhillyGuy](#): > > > > Also, if it is all so clear, why did today’s SCOTUS decision have to get into all those details about feudalism and the common law? > > Because they wanted to support their ridiculous conclusion, of course. > [@Max\_S](#): > > The majority opinion (striking down Trump’s executive order) is the one that went into feudalism and common law. Well, so did the dissents, but the majority relied on that history more. That is, when **PhillyGuy** wrote “today’s SCOTUS decision”, he specifically referred to the majority opinion which struck down Trump’s executive order. So when **Chronos** responded, “_they_ wanted to support _their_ rediculous conclusion”, **Chronos** communicated (inadvertantly, I presume) that the majority’s conclusion, upholding birthright citizenship, is rediculous. _That_ was my point. ~Max ---
**Author:** ![Dewey\_Finn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dewey_finn/32/4222_2.png) [@Dewey\_Finn](https://boards.straightdope.com/u/Dewey_Finn)\ **Post date:** [July 1, 2026, 10:50am UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/222 "2026-07-01T10:50:20Z")
> [@PhillyGuy](#): > > > [@Dewey\_Finn](#): > > > > I’m curious what the basis for the dissent was, given that birthright citizenship seems so clear-cut based on the amendment. > > I find the relevant clause of the 14th amendment to be vaguely worded. It is open to multiple interpretations. What’s vaguely worded about it? It seems pretty clear to me; “subject to the jurisdiction thereof.” The dissent seems to introduce the idea of loyalty or allegiance but that’s not at all in the text. ---
**Author:** ![DavidNRockies](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidnrockies/32/6279_2.png) [@DavidNRockies](https://boards.straightdope.com/u/DavidNRockies)\ **Post date:** [July 1, 2026, 11:46am UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/223 "2026-07-01T11:46:59Z")
[Mindful of this being P&E, I truly don’t mean this as a sarcastic answer] Under the current administration, we have overwhelming evidence that some of the de facto criteria they wish to apply for citizenship are: thought, social media content, a history of ever having worked as a fact-checker, the ‘right’ stance on any number of issues, and sufficient patriotism and jingoism to meet some unbelievably nebulous, uncodified standard that I’m quite certain I wouldn’t meet. It truly seems to me that when Steven Miller, et al, opine on these subjects, the conservative SCOTUS justices take meticulous notes. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [July 1, 2026, 12:08pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/224 "2026-07-01T12:08:10Z")
> [@Dewey\_Finn](#): > > What’s vaguely worded about it? It seems pretty clear to me; “subject to the jurisdiction thereof.” Besides everything discussed in the ruling, it seems that everyone in Venezuela, from the president on down, is literally subject to the jurisdiction of the United States. This of course is not a reason to limit U.S. citizenship, but a reason to expand it to an absurd extent. I bring it up as a hint that the wording if the 14th amendment is some combination of vague and not totally applicable in a changed context. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [July 1, 2026, 12:39pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/225 "2026-07-01T12:39:15Z")
> [@PhillyGuy](#): > > Besides everything discussed in the ruling, it seems that everyone in Venezuela, from the president on down, is literally subject to the jurisdiction of the United States. Which would be relevant to anyone born in Venezuela who’s born in the US. ---
**Author:** ![Alessan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alessan/32/465_2.png) [@Alessan](https://boards.straightdope.com/u/Alessan)\ **Post date:** [July 1, 2026, 1:44pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/226 "2026-07-01T13:44:58Z")
> [@PhillyGuy](#): > > Besides everything discussed in the ruling, it seems that everyone in Venezuela, from the president on down, is literally subject to the jurisdiction of the United States. “Jurisdiction” does not mean control or occupation; it means under the aegis of a legal system. Does U.S. law apply to Venezuela? No - they still use Venezuelan law there, with Venezuelan courts and judges. Therefore, Venezuela is not subject to the jurisdiction of the United States. ---
**Author:** ![bordelond](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bordelond/32/150_2.png) [@bordelond](https://boards.straightdope.com/u/bordelond)\ **Post date:** [July 1, 2026, 2:51pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/227 "2026-07-01T14:51:28Z")
> [@Chronos](#): > > Which would be relevant to anyone born in Venezuela who’s born in the US. **Expectant Mother:** “Quick, Flash! My baby’s crowning here in Caracas, but the baby MUST be born in the U.S. for plot reasons!!!” **The Flash:** “Um … okay. I’m free for the next 30 seconds.” _The Flash grabs the pregnant woman mid-birth and whisks her near-instantly to a Brownsville, Texas maternity ward._ **OB Nurse:** “… what the … I thought this room was empty! We haven’t even cleaned it yet!” **The Flash:** “Sorry, plot reasons – no time to explain! The baby’s coming out now!” _The birth proceeds as normal. In moments, an infant’s cry cuts through the chaos._ **Scene** ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 1, 2026, 3:07pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/228 "2026-07-01T15:07:07Z")
> [@Chronos](#): > > What’s vague about it? Born in the US is clear, and subject to the jurisdiction of the US is clear. If a person commits a crime, can American police arrest them? Yes? Then they’re subject to the jurisdiction of the US. I believe the “subject to the jurisdiction thereof” clause was directed at Native Americans. There were still large groups of them in 1868 who were running their own tribal governments outside of the American political system but inside territory that the United States claimed to own. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 1, 2026, 3:14pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/229 "2026-07-01T15:14:18Z")
> [@PhillyGuy](#): > > Besides everything discussed in the ruling, it seems that everyone in Venezuela, from the president on down, is literally subject to the jurisdiction of the United States. I think you’re missing that it’s a two-part standard: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof”. Even if you accept the idea that people in Venezuela are subject to the jurisdiction of American law, they’re not born in the United States. ---
**Author:** ![gnoitall](https://avatars.discourse-cdn.com/v4/letter/g/bb73d2/32.png) [@gnoitall](https://boards.straightdope.com/u/gnoitall)\ **Post date:** [July 1, 2026, 3:16pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/230 "2026-07-01T15:16:02Z")
> [@Little\_Nemo](#): > > they’re not born in the United States. At least, not until Venezuela becomes the ~~51st 52nd~~ 53rd state ---
**Author:** ![DPRK](https://avatars.discourse-cdn.com/v4/letter/d/4491bb/32.png) [@DPRK](https://boards.straightdope.com/u/DPRK)\ **Post date:** [July 1, 2026, 3:31pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/231 "2026-07-01T15:31:34Z")
> [@Little\_Nemo](#): > > I believe the “subject to the jurisdiction thereof” clause was directed at Native Americans. There were still large groups of them in 1868 who were running their own tribal governments outside of the American political system but inside territory that the United States claimed to own. Is that not still the case today? They have not all vanished. Yet. ---
**Author:** ![Dewey\_Finn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dewey_finn/32/4222_2.png) [@Dewey\_Finn](https://boards.straightdope.com/u/Dewey_Finn)\ **Post date:** [July 1, 2026, 3:32pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/232 "2026-07-01T15:32:52Z")
My _understanding_ is that the jurisdiction clause referred to those born to foreign diplomats. ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [July 1, 2026, 4:06pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/233 "2026-07-01T16:06:43Z")
> [@Little\_Nemo](#): > > I think you’re missing that it’s a two-part standard: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof” which is exactly why the “and” clause is so contentious: what additional information is it adding, since **all** persons born or naturalized in the United States are subject to its jurisdiction? Even those with diplomatic immunity are at least partially subject to its jurisdiction. So who is born in the US without being subject to its jurisdiction? Thinking of a population as subjects rather than citizens, I think it’s initially reasonable to interpret it as against dual citizenship by withholding citizenship from those with _jus sanguinis_ citizenship elsewhere. The trouble with that interpretation is that there are MUCH clearer and more straightforward ways to say that, so it’s difficult to argue that interpretation with a straight face, especially in the 1860s when large numbers of Americans were the children of foreigners from _jus sanguinis_ countries. But that leaves the question of “what did they mean,” thus the kerfuffle. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [July 1, 2026, 4:14pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/234 "2026-07-01T16:14:58Z")
> [@Little\_Nemo](#): > > I believe the “subject to the jurisdiction thereof” clause was directed at Native Americans. There were still large groups of them in 1868 who were running their own tribal governments outside of the American political system but inside territory that the United States claimed to own. That was the largest group of people at the time for whom that was relevant, yes. And the fact that there are no longer any native tribes in US land that aren’t subject to the jurisdiction of the US therefore makes that clause close to irrelevant. It does not, however, mean that justices are now free to invent some completely different meaning for that clause, now that the old meaning is obsolete. > [@Dr.Drake](#): > > which is exactly why the “and” clause is so contentious: what additional information is it adding, since **all** persons born or naturalized in the United States are subject to its jurisdiction? Even those with diplomatic immunity are at least partially subject to its jurisdiction. So who is born in the US without being subject to its jurisdiction? Diplomats and invading armies are the traditional answer, and at the time the amendment was written, some native tribes. It’s not a very big exception to the “everyone in the country” rule, but it is an exception, and has a clear meaning. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [July 1, 2026, 4:25pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/235 "2026-07-01T16:25:22Z")
Justice Jackson made an interesting point in her dissent. When the issue of affirmative action or voting rights was considered, Clarence Thomas took the position that the constitution was race blind, and there was no obligation to address the history of slavery. Now that the 14th amendment is being applied, he’s saying that the law was only meant to elevate black people to equal citizens. It doesn’t extend further. > [@](#): > > One wonders how the outcomes in the above cases [regarding voting apportionment and affirmative action] might have differed had the Court, like the Government and the principal dissent today, relied upon the fact that the Fourteenth Amendment was enacted to ensure that Black Americans are not treated as second-class citizens, or had it at least acknowledged the connection between the Amendment’s historical context and its remedial purpose. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [July 1, 2026, 4:28pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/236 "2026-07-01T16:28:25Z")
> [@Chronos](#): > > Diplomats and invading armies are the traditional answer, and at the time the amendment was written, some native tribes. It’s not a very big exception to the “everyone in the country” rule, but it is an exception, and has a clear meaning. I 100% agree with you, but where do you get this answer? It’s not in the text of the Amendment. You have to leave the text and go to other contemporaneous sources and impute that into the meaning of the text. Once you/majority leaves the text, the Dissenters are free to do so too. There are other contemporaneous sources that do limit the meaning of “subject to the jurisdiction thereof”. It’s discussed in the dissent. They offer cites. I disagree with the dissent. A part of which is this is 150’ish years old discussion, it’s been mostly been answered, and it would be crazy to do a 180 via a SC opinion. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [July 1, 2026, 4:42pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/237 "2026-07-01T16:42:55Z")
> [@Dr.Drake](#): > > Even those with diplomatic immunity are at least partially subject to its jurisdiction. How so? They are immune from criminal prosecution and civil lawsuits and don’t even have to pay parking tickets. No matter what offense someone with diplomatic immunity commits , all the US can do is request that they be recalled to their home country\*. That’s exactly what the “and” clause adds - if undocumented immigrants or temporary visitors were not subject to the jurisdiction of the US, they couldn’t be prosecuted for crimes. Only expelled/deported. \* There are situations where the person can lose their immunity- but then they no longer have diplomatic immunity. ---
**Author:** ![gnoitall](https://avatars.discourse-cdn.com/v4/letter/g/bb73d2/32.png) [@gnoitall](https://boards.straightdope.com/u/gnoitall)\ **Post date:** [July 1, 2026, 4:55pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/238 "2026-07-01T16:55:03Z")
> [@doreen](#): > > but then they no longer have diplomatic immunity. And therefore become subject to the jurisdiction of the United States. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [July 1, 2026, 5:17pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/239 "2026-07-01T17:17:00Z")
Yes, and if they have a child after losing their immunity, that child will be a citizen because the child won’t have immunity. It all depends on the parents" status at the time of the birth. There’s a case where a doctor (in I think Virginia) found out in his 60s that he wasn’t a citizen when he tried renewing his passport.He was born while his father was temporarily employed at a foreign embassy for a few months. Had he been born a few months earlier, he would have been a citizen. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [July 1, 2026, 5:48pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/240 "2026-07-01T17:48:18Z")
> [@Little\_Nemo](#): > > I think you’re missing that it’s a two-part standard: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof”. Even if you accept the idea that people in Venezuela are subject to the jurisdiction of American law, they’re not born in the United States. Fair enough. The great majority of constitutional experts, including a bunch of judges who ruled on this before it went to SCOTUS, say that the traditional interpretation of the 14th amendment is correct. I accept that. I also am conservative enough, in an old fashioned way, to believe that precedent should be respected unless the prior rulings were unambiguously wrong. That’s not the case here. My only point was to question whether the “subject to the jurisdiction of” is really so clear that the dissenters can be dismissed in just a few words. [Previous page](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335.md?page=11) [Next page](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335.md?page=13)