The Bogus Case Against Birthright Citizenship for the Children of Undocumented Immigrants

John Eastman, the legal brain behind the Big Lie, is paving the way for the next big assault on the Constitution

(The UnPopulist illustration)

As Inauguration Day approaches, President-elect Donald Trump’s promise of mass deportation at an unprecedented scale and the infighting within his own movement over H-1B visas have understandably taken center stage. But it’s also worth focusing on what is perhaps his most brazenly unconstitutional proposal of all: ending birthright citizenship, the legal principle that confers automatic citizenship to anyone born on U.S. soil. As far as Trump and the immigration hawks he is bringing into the administration—like his notorious former immigration czar and incoming Homeland Security Advisor Stephen Miller—are concerned, birthright citizenship should not be extended to U.S.-born children of undocumented immigrants.

“We have to end it,” Trump told Meet the Press’ Kristen Welker last month. “We’re the only country that has it,” he erroneously added (dozens of countries—including Canada, Mexico, and Brazil—also recognize birthright citizenship). This wasn’t one of Trump’s extemporaneous flights of rhetorical fancy—in May of 2023, Trump promised to issue an executive order on Day One to end what he called “automatic citizenship for children of illegal aliens.” When Welker asked him point blank if that’s still his plan, Trump responded, “Yeah. Absolutely.”

But if the president-elect believes he will be able to unilaterally undo this policy by executive fiat, he is sorely mistaken: birthright citizenship is clearly established in the U.S. Constitution, which means a presidential order cannot abolish it.

What Does the Constitution Say?

The 14th Amendment, adopted in 1868, begins: “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.” The language could not be clearer: If you’re born in the U.S., you’re a citizen—full stop.

This describes the concept of jus soli (birthplace) citizenship, one of the two main categories of citizenship worldwide. Jus soli citizenship arises from a long Anglo-European tradition, though today it is most prevalent in the Americas. The other major category is jus sanguinis: citizenship by blood (descent). These are not mutually exclusive—many countries, including the U.S., adopt elements of both jus soli and jus sanguinis. The U.S. grants citizenship to children born in the country (jus soli—14th Amendment) and to some children born of U.S. parents abroad (jus sanguinis—by statute).

Historic Exceptions

There are, however, some long-established exceptions to the jus soli rule that the 14th Amendment’s “subject to the jurisdiction” language captures. As the Supreme Court explained in United States v. Wong Kim Ark (1898), two of those exceptions—the children of foreign diplomats and military invaders—go back at least to 17th-century England. The reason the children of diplomats and military invaders don’t qualify for birthright citizenship is because they’re not “subject to the jurisdiction thereof”—they’re quite literally outside the law of the United States. Diplomats enjoy immunity from laws, which is why American cities are missing millions of dollars from uncollectable parking fines from them. As for invaders, their entire presence is aimed at denying and destroying the jurisdiction of the United States—which is why the government is allowed to shoot them without due process. The idea that the “subject to the jurisdiction” principle excludes those two cases has been established in the Anglo-American legal tradition for over 400 years. Importantly, the English precedent that U.S. v. Wong Kim Ark drew on understood even transient sojourners (like tourists) to “owe temporary allegiance to the Crown” such that their children would acquire citizenship if born in the territory.

In the American context, we have two additional longstanding exceptions. Native Americans are granted birthright citizenship by statute, not by the Constitution, because of their unique history as members of nations with competing sovereign claims over the same territory. In the original Constitution, some laws—particularly with respect to taxation—didn’t apply to Native Americans. In that sense, they were similar to diplomats as partially outside the “jurisdiction” of our laws—in the conventional legal meaning of the term. Recognizing this preexisting legal reality, Section 2 of the 14th Amendment includes a specific reference to “Indians not taxed.”

Finally, in the so-called Insular Cases, like Downes v. Bidwell, the Supreme Court made a distinction between the core parts of the U.S. (like the 50 states) and the unincorporated territories, which don’t count as full-fledged U.S. soil for constitutional purposes. That means, for example, that those born in places like American Samoa are also outside the Birthright Clause.

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America Can’t Do Without Immigrants

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With respect to the territories, there are two additional complications suggesting that their exemption from birthright citizenship cannot be extended to those born within the 50 states.

First, the people of the territories maintain distinct cultural and national identities (much like Native Americans), and many object to having birthright citizenship imposed on them—for example, representatives from the government of American Samoa recently argued in a U.S. appellate court that the “imposition of birthright citizenship would be against their people’s will and would risk upending certain core traditional practices.”

Second, the Insular Cases are generally discredited as deeply racist. Downes, the most important of those cases, betrays the motivations behind its exclusion of the territories in this way: “If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible.”

Understandably uncomfortable with a constitutional doctrine resting on the distinction between “alien races” and “justice according to Anglo-Saxon principles,” at least one conservative member of the current Supreme Court would like to see the Insular Cases overturned. But even if the Insular Cases continue to have a place in our law, none of those exceptions apply to U.S.-born children of undocumented immigrants within the 50 states who, unlike diplomats, are fully subject to U.S. law and file taxes and, yes, pay parking tickets like the rest of us.

The ‘Allegiance’ Argument

Very few legal theorists besides the disgraced insurrectionist John Eastman, the mastermind behind Donald Trump’s fake elector scheme to overturn the 2020 election, dispute this interpretation of the 14th Amendment.

Eastman offers two related arguments.

The first is to construe the 14th Amendment’s “subject to the jurisdiction” clause in a way that would rule out U.S.-born children of undocumented immigrants from qualifying. He distinguishes between two senses of “jurisdiction”: partial and complete. As Eastman sees it, in the partial, more limited reading of “subject to the jurisdiction,” a person’s presence “within the territory of a sovereign” makes them subject to the “jurisdiction of that sover­eign’s laws.” But “subject to the jurisdiction” in Eastman’s preferred, more complete sense, by contrast, requires allegiance to the sovereign on top of that. Eastman maintains that just like the U.S.-born children of indigenous Americans who belong to a Native Nation or tribe, and like the U.S.-born children of foreign emissaries, the U.S.-born children of undocumented immigrants cannot give full allegiance to the United States by virtue of their parents owing their allegiance to a separate nation or foreign power. According to Eastman, when undocumented immigrants have a child in the U.S., that child can only qualify as being “subject to the jurisdiction” of the United States in the partial, limited sense, not in what he takes to be the 14th Amendment’s more complete sense, which disqualifies from citizenship anyone maintaining allegiance to another sovereign. This is similar to the line of reasoning that powered Eastman’s absurd challenge to Kamala Harris’ eligibility for the presidency.

But this interpretation is dubious under both a textualist and jurisprudential approach.

Under a textualist reading of the Constitution, which relies on the plain meanings of terms and one that conservatives hitherto have favored, “jurisdiction” is different than “allegiance.” They plainly have different meanings—and even Eastman, who argues that the 14th Amendment’s “subject to the jurisdiction” clause is intended in an allegiance-obliging sense, acknowledges that the word “jurisdiction” can be used in a way that doesn’t intend or require strong allegiance. But even beyond a textualist approach and drawing on precedent and historical tradition instead, the Supreme Court in Wong Kim Ark specifically made use of the concept of “temporary allegiance,” which is owed by any person that happens to be in the territory. This is a concept that has been part of the law for centuries, and it entails that a person who is on U.S. soil, regardless of the circumstances, owes allegiance to the U.S., unless they fall into one of the traditional exceptions.

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What’s more, given that U.S. law since the 1967 Afroyim v. Rusk case has acknowledged the existence of dual citizenship—and hence dual “allegiance”—having such an allegiance cannot be grounds for denying anyone citizenship. That case explicitly noted that the Department of State couldn’t involuntarily denaturalize a citizen for voting in an Israeli election, which indirectly repudiates Eastman’s preferred gloss on “subject to the jurisdiction” as being intended in a “total and exclusive” sense.

Moreover, U.S.-born children of undocumented immigrants may not actually have dual allegiance: they may not be citizens of the country their parents come from. That all depends on the origin country’s law, which may or may not grant citizenship by descent. If Eastman’s argument purports to be about the allegiance of the child rather than the parents, it seems to make U.S. citizenship conditional on the laws of other countries. Even the losing argument in Afroyim v. Rusk didn’t go that far: the government had proposed to take away Afroyim’s citizenship for an intentional, adult, political act in a foreign country. Trump and Eastman propose to take away the citizenship of children who have never voted in a foreign election or anything like it on the basis of pure speculation about their foreign allegiance.

Citizenship and Consent

The second Eastman argument is the notion that citizens have to consent to the inclusion of others within their civic body, and because undocumented immigrants are here without authorization, the American people don’t consent to the citizenship of their children. For Eastman, the consent argument is a necessary supplement to the allegiance argument—without it, he has no explanation for why the children of immigrants with green cards wouldn’t also lose their citizenship, since the “allegiances” of those parents and their children would be the same regardless of immigration status. The consent argument serves to distinguish between children of documented and of undocumented immigrants. However, just like with the allegiance argument, there are many problems with the consent argument.

For starters, just who is supposed to be giving this consent, and to what, and in what form? When a child is born in the U.S., there is no consent step—citizenship is acquired automatically. This is the case for the children of undocumented immigrants, green card holders, H-1B visa holders, tourists, naturalized and even native-born U.S. citizens. There is no act of consent outside the legal system that is required to confer citizenship on U.S.-born children.

Can we instead establish consent by looking inside our legal system? It certainly makes sense to look to a country’s laws to identify what its people have consented to. This, in fact, is a crucial part of Eastman’s argument: he’s arguing that because undocumented individuals are in violation of our immigration laws, it means they fail to obtain our consent. But his argument rests on a fatal equivocation between consent to an undocumented individual’s presence in our jurisdiction and consent to the citizenship of their child. In other words, Eastman’s argument is that because the American people did not consent to the presence of undocumented parents (evidenced by the laws against undocumented immigration), they also must not have consented to their children acquiring citizenship, and therefore the birthright principle cannot apply to them, notwithstanding the plain text of the 14th Amendment and the lack of any notion of “consent” in that text.

We should be clear about the implications of this argument: If “consent” means “consent to the presence of the person in the jurisdiction,” and if Eastman is allowed to transmute the lack of consent toward the parents’ actions to a lack of consent toward the child’s citizenship status, this would make a subset of U.S.-born individuals ineligible for citizenship based on disfavored actions of their parents. Those who advance this argument are essentially claiming that because the American people didn’t consent to the presence of the undocumented parents, their children must be punished with loss of citizenship (and potential statelessness). But the children violated no law and did not enter the U.S. without authorization (or “consent”). One of the basic principles of American individual liberty is that degraded legal status isn’t heritable. Consider the prohibition in the Constitution on punishing treason through what is known as “corruption of blood,” that is, barring the convicted from transferring their property to their descendants.

That provision reflects the core distinction between a feudal society and a liberal republic like the United States: legal benefits or disabilities in the United States are consequences of one’s personal acts, not the acts or status of one’s parents (see also the Titles of Nobility Clause). The one case where the Founders failed to respect that basic distinction is, of course, their greatest evil: the children of enslaved mothers were themselves enslaved.

Apropos of slavery, making the right of citizenship of some individuals depend on the consent of the others was precisely what the 14th Amendment rejected. There’s a grim racist history to the “consent” argument. Recall that during and after the Civil War, many whites wanted to deport the Freedpeople. Black abolitionists and Freedpeople had to insist on their own citizenship and their right to remain in the U.S. According to a contemporary account of a debate between Frederick Douglass and President Andrew Johnson in 1866, Johnson specifically advanced the “consent” argument against including Freedpeople as citizens with full rights, such as the franchise. His position was that it would be wrong to force the Freedpeople on the (white, already enfranchised) people of the South without their consent.

Johnson lost that argument. That’s why the 14th and 15th Amendments explicitly conferred citizenship and the right to vote on Freedpeople. In other words, the American people had the opportunity to consider John Eastman’s “citizenship by consent” argument and rejected it. They agreed with Frederick Douglass that citizenship would by law go to those born on the soil.

Eastman and his ilk can always try and amend the Constitution to withdraw the consent already granted, but they can’t do it through executive order or constitutional reinterpretation.

Immigration Is Not Invasion

Another prominent argument increasingly fashionable on the right, one associated with far-right Fifth Circuit Judge James Ho, one of the architects of the “torture memos” during the George W. Bush presidency, is the idea that someone, perhaps the states, perhaps Donald Trump, can declare undocumented immigrants to be an “invasion,” and thereby trigger one of the traditional exceptions to birthright citizenship. (But which immigrants, and how long as this “invasion” being going on? We are not told.) Just like the allegiance and consent arguments, this invasion argument has multiple flaws.

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There’s a legal meaning of “invasion” that requires organized, armed hostility to the country being invaded. A federal appeals court, explaining why states could not force the federal government to control immigration under the “Invasion Clause” of the Constitution, pointed out that “[i]n order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state's government.” This understanding of “invasion” goes back at least to James Madison. Undocumented immigrants who come unarmed of their own initiative, rather than as part of an army, are not invaders. Trump can’t take his own “invasion” metaphor literally in order to bypass constitutional constraints.

Even if the federal courts would be leery about ruling on who is and who is not an invader, the plain reality is that immigrants, documented or otherwise, are the opposite of invaders: they seek the protection of the U.S. and the benefits of living under its government, and rely on the U.S. enduring in order to achieve those outcomes. The last thing they want to do is oppose or attack the United States. Often, they have left the countries they came from because they prefer the U.S. system, including its laws, to the system of the country in which they were born.

In the end, every single legal argument for stripping U.S.-born children of undocumented immigrants of citizenship fails. The 14th Amendment is clear. If Donald Trump pushes to deny them citizenship status, we should treat it as yet another Trump-led assault on the Constitution.

© The UnPopulist, 2025

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