One of the more persistent myths in American constitutional discourse is that of birthright citizenship being “well-settled law.” This phrase is repeated with the mechanical confidence of those who believe that repetition can stand in for reasoning: by politicians like Governor Phil Murphy, by institutional organs like the American Bar Association, and by activists for whom constitutional inquiry ends where political convenience begins.
But like so many pronouncements from the bench of our bien pensant class, this one collapses under the slightest intellectual pressure. The idea that the Fourteenth Amendment guarantees automatic citizenship to the children of those who have entered the country illegally, and that this is “well-settled,” is not only legally dubious, it is historically dishonest, logically incoherent, and democratically indefensible.
Let us begin with the simplest point: the Supreme Court has never held that the Constitution mandates citizenship for the children of illegal immigrants. The oft-cited case, United States v. Wong Kim Ark (1898), concerned a man born in San Francisco to Chinese parents who were legal residents of the United States. The ruling turned on whether the government could deny citizenship to someone born on American soil whose parents were lawfully present, though racially excluded from naturalization. It was a necessary corrective to the anti-Chinese bigotry of the era and an affirmation of jus soli, the doctrine of citizenship by birthplace.
But it was not—emphatically not—a ruling on the children of those who had entered the country in defiance of its laws. The Court did not consider the status of people whose very presence is illegal, nor did it imagine a world where international travel was so frictionless and immigration law so cynically gamed. Wong Kim Ark was a decision rooted in the facts of its time: the slow churn of transcontinental movement, the absence of an illegal immigration crisis, and the solemn aftermath of the Civil War, whose constitutional amendments it sought to clarify.
To transpose that ruling wholesale onto the present situation is to confuse precedent with dogma. The Court was not then asked to decide the matter we now confront. And yet its ruling is now invoked as if it were a divine tablet passed down to prohibit all future deliberation.
But let us indulge the question further. The text of the Fourteenth Amendment guarantees citizenship to all persons “born or naturalized in the United States, and subject to the jurisdiction thereof.” The second clause—so often treated as ornamental—is in fact the operative hinge. What does it mean to be “subject to the jurisdiction” of the United States?
A common-sense reading, informed by the legislative history, answers this easily. Senator Jacob Howard, who authored the clause, explained that it would not apply to foreigners, aliens, or the children of ambassadors—people who, though present on U.S. soil, owe no allegiance and are not subject to the full coercive power of the state. The principle was allegiance, not mere geography. And the inclusion of that phrase was no accident; it was a deliberate limitation on an otherwise broad grant.
Now consider the case of someone who enters the country illegally. By what logic can we say that such a person is “subject to the jurisdiction” of a nation to whose jurisdiction they have deliberately not subjected themselves? One cannot be selectively subject to a nation’s jurisdiction—obedient enough to receive its benefits, defiant enough to avoid its consequences. Jurisdiction is not a buffet. It is not an à la carte arrangement where the guest decides what applies and what does not.
More troubling still, this entire edifice undermines democracy itself. Immigration law is not merely an administrative concern. It is a function of national sovereignty and democratic will. We, the people—through our representatives—determine who may enter, under what conditions, and how they may become citizens. Illegal immigration is a subversion of that process. It transfers the power of decision from the citizen to the trespasser. The democratic contract is voided; the trespasser imposes his presence, his costs on everyone else.
In what other context would this be tolerated?
And yet, we are told that this is settled, that we must submit to the interpretations of judges who never considered the question before us. This is, frankly, nonsense. Precedent is not scripture. And even scripture, as every serious theologian knows, must answer to the real world. The Supreme Court has never been shy about revisiting unworkable precedent—indeed, it has done so repeatedly, whenever decisions proved incompatible with governance, liberty, or common sense, or which never addressed the precise issue and therefore left it open to future debate.
A doctrine that grants citizenship automatically to the children of people who violate our laws, who evade our processes, and who defy our borders, is not merely unjust. It is unworkable. It incentivizes fraud, encourages exploitation, and mocks the very idea of national sovereignty. It transforms citizenship from a covenant into a loophole.
And let us not pretend that the world of 1898 remotely resembles our own. That ruling was delivered before the invention of the airplane, before the rise of global tourism, before the welfare state, and before the concept of “anchor babies” or “birth tourism” had even entered the imagination. It was a time when people rarely left their home towns, much less their countries. To suggest that a ruling crafted in that historical context is capable of governing our modern immigration reality is to engage in historical cosplay. It is law without context. And law without context is tyranny by inertia.
Is there any serious doubt that the debate back then would have been different had they then been confronted with the circumstances of today? Or that those who wrote the law would have written it the same way had illegal immigration then been a problem?
If the Court is concerned—as it so often claims to be, especially lately—with the rule of law, its own legitimacy, and attacks on judicial independence, then it cannot continue to foist upon us interpretations that are plainly unworkable, untethered from present realities, and rooted in circumstances utterly foreign to our own. It must recognize that its credibility derives not from stubborn consistency, but from the willingness to reconsider precedent when precedent has become absurd.
We are not governed by ghosts. And the Constitution is not a mutual suicide pact.
