What Is the Latest Decision on Birthright Citizenship Question?

The topic of discussion for this Constitution Monday concerns birthright citizenship. On January 20, 2025, newly inaugurated President Donald Trump issued an executive order that redefined who is “subject to the jurisdiction of the United States.” My long-time readers understand that I support Trump in his attempt to bring clarity to this issue. To do so, it is necessary for the public to become involved in the debate about birthright citizenship. Therefore, Trump’s executive order is a good thing no matter what the Supreme Court eventually decides.

Trump’s order was immediately challenged in the court system, and the latest decision was made on July 27, 2025, in State of Washington, et al. v. Donald Trump, et al by the Ninth Circuit Court of Appeals.

According to an article authored by Edward J. Erler and published at The Blaze, this opinion was “ideologically motivated” by a three-judge panel. He claimed that the decision was “an embarrassment to the canons of legal reasoning and historical truth” that will surely “be overruled by the Supreme Court – hopefully on an expedited basis.” 

The judges in the Ninth Circuit decision, citing contemporary dictionary definitions of “jurisdiction” from the time of the 14^th Amendment’s passage, find that the “ordinary meaning of jurisdiction” is simply “‘the authority of government; the sway of a sovereign power.’” They easily conclude that this is “consistent with Plaintiffs’ interpretation of ‘subject to the jurisdiction thereof’ as subject to the laws and authority of the United States.” To drive this point home, the opinion alleges:

Defendants point to no contrary dictionary definitions that define jurisdiction in terms of allegiance and protection. Indeed, they make no arguments about the ordinary meaning of the Citizenship Clause at all. Defendants’ only argument based on the text of the Citizenship Clause is that “subject to the jurisdiction” cannot simply refer to “regulatory jurisdiction,” because that definition would render the Citizenship Clause’s requirement of jurisdiction surplusage. They claim that the United States has “exclusive and absolute” regulatory jurisdiction within its territory, so that all children born in the United States are subject to its jurisdiction.

Erler agreed that the “defendants do not prove their point about ‘jurisdiction in terms of allegiance’ by recourse to contemporary dictionaries.” He said that the defendants “have recourse to the statements and arguments made during floor debates in the 39^th Congress.” He then stated: “The principal drafters, architects, and supporters of the 14^th Amendment understood the meaning of ‘jurisdiction’ in terms of ‘allegiance.’” The article continued with the authors’ intent.

·         Senator Jacob Howard (R-Mich.), a member of the Joint Committee on Reconstruction, was the floor leader for the debate on the Citizenship Clause. It was a late addition to the amendment, proposed by Senator Benjamin Wade of Ohio (R-Ohio), which initially stated that citizens are “persons born in the United States or naturalized by the laws thereof.” Wade added that he believed the matter of citizenship had been settled by the Civil Rights Act of 1866.

·         Wade’s proposal was referred to the Joint Committee on Reconstruction, and Senator Howard presented the committee’s draft, which became the first sentence of the 14^th Amendment. The significant addition to Wade’s proposal was the clause that specifies its subject as those “subject to the jurisdiction” of the United States. Evidently, Senator Howard and the Joint Committee placed some importance on the addition of this jurisdiction clause.

This meant, at a minimum, that not all persons born in the U.S. were automatically citizens; they also had to be “subject to the jurisdiction” of the U.S. When he introduced the bill, Senator Howard said he regarded the Citizenship Clause as declaratory of the law as it already existed. He was clearly referring to the Civil Rights Act of 1866….

·         The Civil Rights Act of 1866 established the citizenship of newly freed slaves and the protection of their rights and liberties on the exact same basis as those of white citizens…. In short, this was a color-blind law.

Some believed the Civil Rights Act was unnecessary, arguing that the 13^th Amendment had already accomplished the intended purpose. Others believed … that security of citizenship and rights should be recognized in legislation as a social compact. Still others, however, feared that such legislation could be repealed by future majorities. This concern became the impetus for the 14^th Amendment to “constitutionalize” the Civil Rights Act of 1866.

·         Senator Lyman Trumbull (R-Ill.), chairman of the Sente Judiciary Committee and principal architect of the 13^th Amendment as well as the Civil Rights Act of 1866, jointed Senator Howard, agreeing that the “law of the land” in the U.S. meant that “subject to the jurisdiction” connoted “complete jurisdiction,” not “owning allegiance to anyone else” – the very definition of citizenship in the Civil Rights Act.

Erler explained that the Ninth Circuit Court referred to United States v. Wong Kim Ark (decided in 1898) and Elk v. Wilkins (1884) to prove its point. “However, the opinion in Elk cannot be squared with the Wong Kim Ark opinion, and it remains a mystery why Justice Gray changed his mind on this important issue of the common-law basis of American citizenship.”

·         The Ninth Circuit closes its opinions by arguing that “post-ratification public understanding of the 14^th Amendment supports the Plaintiffs’ interpretation of the Citizenship Clause.” That understanding was that jurisdiction was equated with being subject to the laws of the United States.

·         Abraham Lincoln didn’t live to see the ratification of the 14^th Amendment, but it is difficult not to see his spirit embedded in its first section. Lincoln said presciently in his First Inaugural Address that the “intention of the law-giver is the law.” This is a perfectly Aristotelian statement and undoubtedly understood by Lincoln as such.

·         Nothing can be more obvious, even to the most unpracticed eye, than that the intentions of the framers, architects, supporters, and friends of the 14^th Amendment were that “jurisdiction meant, owing complete allegiance to the U.S. and to no other foreign jurisdiction.”