# 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:** 13
**Author:** ![thorny\_locust](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thorny_locust/32/431_2.png) [@thorny\_locust](https://boards.straightdope.com/u/thorny_locust)\ **Post date:** [July 1, 2026, 5:57pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/241 "2026-07-01T17:57:52Z")
> [@DPRK](#): > > > [@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. They certainty haven’t all vanished; but they’re now specifically US citizens if born (or naturalized) in the US. At the time of the 14th they didn’t also have USA citizenship. > **[Indian Citizenship Act](https://en.wikipedia.org/wiki/Indian_Citizenship_Act)** > > The Indian Citizenship Act of 1924 (43 Stat. 253, enacted June 2, 1924) was an act of the United States Congress that declared Native Americans born within the United States are US citizens. Although the Fourteenth Amendment to the U.S. Constitution provides that any person born in the United States is a citizen, there is an exception for persons not "subject to the jurisdiction" of the federal government. This language was generally taken to mean members of various tribes that were treated a... > [@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. For what it’s worth, that’s my understanding also. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [July 1, 2026, 6:23pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/242 "2026-07-01T18:23:39Z")
> [@Dr.Drake](#): > > Even those with diplomatic immunity are at least partially subject to its jurisdiction. Not so much. In fact, they are the bright line example. > [@Moriarty](#): > > Justice Jackson made an interesting point in her dissent. She dissented? I thought it was Thomas, Alito and Gorsuch. ---
**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, 6:24pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/243 "2026-07-01T18:24:18Z")
> [@doreen](#): > > How so? They are immune from criminal prosecution and civil lawsuits and don’t even have to pay parking tickets. So they don’t have to obey traffic lights, honour contracts, or any of the other things? Not subject to the rule of law, just on their honour? In that case, they cannot buy a car or a home or rent an apartment? ---
**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, 6:29pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/244 "2026-07-01T18:29:06Z")
Diplomats _are_ expected to obey the law… ---
**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, 6:30pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/245 "2026-07-01T18:30:00Z")
I know, but my point is that if they don’t have to, they can’t be held to a contract, which would surprise me if true. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [July 1, 2026, 6:30pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/246 "2026-07-01T18:30:24Z")
> [@Dr.Drake](#): > > So they don’t have to obey traffic lights, honour contracts, or any of the other things? They are not subject to the Jurisdiction of the USA. They cant even be sued. > **[diplomatic immunity](https://www.law.cornell.edu/wex/diplomatic_immunity)** > [The Vienna Convention on Diplomatic Relations (1961)](https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf), which most countries have ratified, offers diplomats acting as officials of state almost total protection from subjection to [criminal](https://www.law.cornell.edu/wex/criminal), administrative, and [civil](https://www.law.cornell.edu/wex/civil_law) laws belonging to the country in which the diplomatic mission is located. > Article 31 of the Vienna Convention provides for three exceptions to the diplomatic immunity which are as follows: > > 1. A real action relating to [private immovable/tangible property](https://www.law.cornell.edu/wex/tangible_personal_property). > 2. An action relating to [succession](https://www.law.cornell.edu/wex/succession). > 3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. ---
**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, 6:34pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/247 "2026-07-01T18:34:12Z")
It is not like rogue diplomats have never gotten into trouble up to and including murder. It is then an international incident. > In one case, for example, officials from Zaire stopped paying rent to their private landlord and ran up $400,000 in debt. When the landlord sued, the US State Department defended the Zaireans on the basis of diplomatic immunity, and a circuit court agreed. When the landlord finally cut off the utilities, the officials fled without paying their back rent. The landlords reportedly later reached an “amicable agreement” with the Zairean government. ---
**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, 6:37pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/248 "2026-07-01T18:37:42Z")
There’s a difference between “don’t have to obey traffic lights” and “don’t have to pay any tickets”, but according to [this](https://www.state.gov/wp-content/uploads/2019/07/2018-DipConImm_v5_Web.pdf) there are very limited exceptions to their immunity for civil suits > While it is not ordinarily of > concern to police authorities, they also have > immunity from civil suits except in four very > limited circumstances: (a) in connection with > real property transactions not conducted on > behalf of the mission; (b) in connection with > any role they may play as executor for or heir to > an estate being distributed in the host country; > (c) in connection with the performance of > professional or commercial activities outside > the scope of their official duties; or (d) in > respect of counterclaims on the same subject > matter when they have been the initiating party > in a suit. Finally, they enjoy complete immunity > from the obligation to provide evidence as > witnesses and cannot be required to testify > even, for example, if they have been the victim > of a crime So apparently they might be subject to lawsuits for not paying rent or a mortgage. They can certainly buy a car - but getting a loan may be impossible without waiving their immunity ---
**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, 6:47pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/249 "2026-07-01T18:47:31Z")
> [@PhillyGuy](#): > > 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. This was exactly my interest the last few days. That phrase and what does it mean. My opinion, is that it is fairly clear cut in 2026. Had the dissenters argued all this in the 1800s, then _maybe_ they have a better argument and it’s not as clear cut _then_. But a lot of time has passed. Lots of this has been argued in court before. Unclear things got clarity. _Now_ it is pretty obvious what that phrase means. It’s meaning has crystalized over time. It doesn’t really matter what some congressman said in passing about that phrase in 1868 or whatever. When you add it _all_ up, over time, the weight of it is pretty clear. ---
**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, 7:00pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/250 "2026-07-01T19:00:46Z")
**re: diplomatic immunity.** Two ways I approach this. If we’re arguing whether foreign diplomats were meant to be an exception to the 14th phrase “subject to the jurisdiction” - yes, they were clearly meant to be an exception. Text doesn’t state it, but lots of other sources do, and over time, and it’s a well-understood exception. If we’re just taking an untethered phrase “subject to the jurisdiction” just floating around - I mean, I feel like a foreign diplomat is subject to American jurisdiction. Maybe not fully, but certainly in part. Even if they are immune, they still have to follow the law. The consequences of breaking the law are much different, but they are still expected to follow it and there can be some consequences for not doing so. ---
**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, 7:04pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/251 "2026-07-01T19:04:56Z")
> [@CoolHandCox](#): > > a foreign diplomat is subject to American jurisdiction I disagree. They have to follow the law, yes. But, if they fail to, it is not American justice they are subject to. Not that they cannot be prosecuted at home, or that (as representatives of a state) that state cannot revoke their immunity, etc. PS nobody is contending that a foreign diplomat’s children are American citizens?? ---
**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, 8:00pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/252 "2026-07-01T20:00:02Z")
> [@DrDeth](#): > > > [@Moriarty](#): > > > > Justice Jackson made an interesting point in her dissent. > > She dissented? I thought it was Thomas, Alito and Gorsuch. Correct. Mia culpa ---
**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, 8:04pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/253 "2026-07-01T20:04:26Z")
I can enter into a contract with a foreigner who’s never stepped foot in the US. ---
**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, 9:08pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/254 "2026-07-01T21:08:34Z")
Someone above explained the distinction I was failing to understand more clearly, but, again, this is why “subject to the jurisdiction of” doesn’t make any sense without a lawyer’s understanding: _anyone_ is potentially subject to the jurisdiction of the USA, should they travel to the US, enter into a contract enforced by US courts, etc. Shock: apparently, it doesn’t hold the plain English meaning in the context of the Constitution. ---
**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, 10:00pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/255 "2026-07-01T22:00:20Z")
Like I said above, it’s a two part standard. A person who travels to the United States may be subject to American law while they’re here. But they weren’t born here. So they don’t qualify for birthright citizenship. ---
**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, 10:20pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/256 "2026-07-01T22:20:26Z")
With limited exceptions, anyone who travels to the US becomes subject to the jurisdiction of the US. People can be subject to the jurisdiction of the US in other ways, but that doesn’t matter. Because if someone’s not in the US, they can’t give birth in the US. ---
**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, 11:29pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/257 "2026-07-01T23:29:12Z")
But such people can travel while pregnant, and give birth incidentally. Look, I’m not arguing that the phrase doesn’t mean what everyone agrees that it means. What I’m saying is that the phrase isn’t clear on the face of it, because the notion of jurisdiction is so complicated with so many permutations in civil and criminal law. ---
**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, 11:40pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/258 "2026-07-01T23:40:23Z")
> [@Dr.Drake](#): > > But such people can travel while pregnant, and give birth incidentally. If they travel to the US, then whatever other jurisdiction exists is irrelevant, because they’re under the jurisdiction of the US just by being here. If they travel to anywhere other than the US, then the jurisdiction is also irrelevant, because the kid wouldn’t be born in the US. ---
**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, 11:40pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/259 "2026-07-01T23:40:43Z")
> [@Dr.Drake](#): > > such people can travel while pregnant, and give birth incidentally. Yes, and if they do inside the United States, then their child becomes an American citizen. That’s what the amendment says, and means. There are other ways to prevent the concern or fear of birth tourism; make it illegal for pregnant people (or those close to delivery) to visit the country, for example. But you have to respect the 14th amendment. ---
**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, 11:55pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/260 "2026-07-01T23:55:26Z")
I’d just add that being subject to a jurisdiction and being within a jurisdiction are not the same thing. You can be within US jurisdiction but not subject to it. A foreign diplomat physically in NY is within US jurisdiction but is not subject to it. The phrase “subject to the jurisdiction” is complicated because it inherently implies there are exceptions to just being within the border. But the text of the 14th does not clarify what those exceptions are. [Previous page](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335.md?page=12) [Next page](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335.md?page=14)