The Birthright Battle Begins

Future historians may judge that Executive Order 14156 marked the beginning of the end for American liberalism. But first, the American right must win the battle that President Donald Trump kicked off when he signed it. 

The order, which a U.S. district judge has temporarily blocked, ends birthright citizenship for those born on American territory to parents who are neither citizens nor permanent residents. 

Its title—“Protecting the Meaning and Value of American Citizenship”—points to its deepest purpose, which is not, pace the histrionics of liberal elites, to inflict suffering on minorities. The president is pushing the federal government toward a concept of citizenship that is bound up with ideals of ancestry and allegiance and consistent with the notion of nationhood. If the order is upheld, then U.S. citizenship will still be understood as a birthright, but the birthright of Americans. 

The Supreme Court, which is likely to adjudicate the matter, may yet strike down the order. But its legal basis appears sound.

Much hinges on the interpretation of the first sentence of the Fourteenth Amendment and especially its second phrase: “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).

The purpose of that amendment was to prevent states from denying citizenship to people granted it by the federal government, namely, freed slaves and their children. And the function of the second phrase was to withhold birthright citizenship from certain groups. Liberals tain that the list of excepted groups was short, comprising American Indians, the children of foreign sovereigns and their ministers, and the children of military invaders. Conservatives say that the children of all aliens and foreigners were meant to be excluded, along with American Indians.

The conservatives are probably right. The framers of the amendment, as their debates in Congress reveal, understood being “subject to the jurisdiction” of the United States to entail owing it exclusive allegiance. For them, the phrase captured a special political relationship between the federal government and members of the American nation, and it excluded people who, though born in the United States, belong to a foreign land.

Liberals, by contrast, have assumed that being “subject to the jurisdiction” of the U.S. government means, simply, being obligated to obey its laws. Yet American Indians have never held get-out-of-jail-free cards, and everyone agrees the phrase excluded them. 

Obviously, the men who drafted, debated, and passed the Fourteenth Amendment subscribed to a more robust notion of jurisdiction than today’s liberals acknowledge. Trump’s directive is consistent with their intentions and thus a legitimate presidential act.

Nevertheless, the fate of the order is uncertain, and arguments about case law will be marshalled against it. The Supreme Court decision in United States v. Wong Kim Ark (1898) established birthright citizenship for the children of resident aliens. The category of residency is regulated by the U.S. federal government and excludes illegal aliens and people on temporary visas, which is why so many of them hope to obtain green cards. But the Supreme Court may uphold the 127-year-old ruling and affirm that it covers these groups.

If it does, the absurdity of near-universal birthright citizenship will not only re but become more firmly entrenched. And if Trump, in reaction to such a decision, directs the federal bureaucracy to ignore it, the country would be flung into constitutional crisis.

Despite these risks, Trump’s gamble was worth a throw. The Supreme Court’s conservatives outnumber the liberals six to three and may hesitate to declare the order unconstitutional. Moreover, public opposition to mass migration is strong, thanks to the disastrous open-border policies of the Biden administration. Popular sentiment often figures into the Supreme Court’s rulings, even as its justices profess to float above the Sturm und Drang of politics. Given these advantages, now is a propitious time to let the court weigh in.

It’s also a good time for conservatives to intensify the fight over the nature of U.S. citizenship and American nationality. Ezra Klein of the New York Times recently said he was “struck by how much Make America Great Again was about renegotiating who is or can be an American.” In his telling, Trump’s executive order vindicates the “longtime liberal view” that MAGA’s “fundamental question is about belonging.” 

Klein is right. Trump, in issuing the executive order, proved that his movement is about more than lowering the price of eggs. It’s also about profound philosophical conundrums relating to identity that divide the American people. Conservatives believe that America is a pre-political nation, united by a common culture and connected to a common past. Liberals believe that America is an “idea” and that its citizens are held together by government documents, commercial exchange, and the happenstance of proximity.

This is a debate that conservatives can win. Liberalism reigns hegemonic in America today, yet it suffers from a foundational, potentially fatal, weakness: its vision of nationhood is uninspired and at odds with common sense. 

For liberals, “we” is a problematic, discomfiting word for a nation to speak with too much confidence. For conservatives, “We the People of the United States” are something like a family, and newcomers, to gain admittance, must first attain our consent. Absent the mutual trust that arises from shared identity, conservatives believe, daily life becomes distressing and self-government impossible. 

According to elite consensus, Trump is trying to upend the constitutional order by fiat. But there’s another way of seeing things. By ordering the end of birthright citizenship, Trump has wrestled the issue of belonging away from the lawyers and judges and put it back inside the political arena. His action will raise public consciousness and perhaps lead Congress to pass a law clarifying the scope of the 14th Amendment.

That liberals are anxious for unelected judges to settle the issue is unsurprising. For in the battle over birthright citizenship, conservatives just might deal American liberalism a decisive blow.