Rethinking the Fourteenth: A Legal and Historical Defense of Trump's Citizenship Reform

The Citizenship Clause of the Fourteenth Amendment contains only fourteen words, yet for over a century, its interpretation has been inflated beyond its plain meaning. The clause states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." On its face, the sentence appears simple, almost tautological. But constitutional interpretation is rarely simple, and seldom tautological. The critical hinge is the phrase "subject to the jurisdiction thereof." And here, President Trump, through Executive Order 14160, has done what jurists and legislators have long been too timid to attempt: reclaim its original meaning.

Critics allege this order is radical, cruel, or un-American. It is none of the above. In fact, it is constitutional, rational, and long overdue. The order does not revoke citizenship, nor does it do anything retroactively. It merely resets the legal understanding of citizenship moving forward by insisting that a child born on American soil must have at least one parent with a permanent legal tie to the US in order to be granted citizenship.

Let us proceed carefully. First, the constitutional text. The phrase "subject to the jurisdiction thereof" was never meant to cover everyone present on American soil. The framers of the Fourteenth Amendment could have said that anyone born in the US is a citizen. They did not. They inserted the jurisdictional qualifier. Why? The answer is both historical and philosophical.

Senator Jacob Howard, who introduced the amendment in 1866, explained that the jurisdiction clause excluded not only foreign diplomats and their families, but also "Indians not taxed," a term of art referring to tribes still under sovereign governance. This makes sense: jurisdiction, in the constitutional sense, connotes not merely being subject to local laws but owing political allegiance. As legal scholar John Eastman has written, jurisdiction implies complete, not partial, allegiance. Temporary visitors, illegal entrants, and those who maintain legal ties to a foreign sovereign are not fully subject to American jurisdiction.

This understanding also coheres with the precedent most frequently cited to oppose it: United States v. Wong Kim Ark (1898). In that case, the Supreme Court held that a child born to Chinese parents who were lawful, permanent residents was a US citizen. The Court emphasized that the parents were "domiciled" in the United States. This point is often conveniently overlooked by critics who pretend that Wong Kim Ark settled the issue for all children of noncitizens, regardless of legal status. It did not. It settled the issue for the children of lawful residents.

Trump's EO, far from contradicting Wong Kim Ark, aligns itself with the very facts that case deemed constitutionally salient: domicile, lawful presence, and allegiance. A child born to tourists, temporary visa holders, or those in the country unlawfully does not meet that threshold. This position is neither novel nor extreme. It was held by the executive branch in the 1880s and early 20th century. Thomas Bayard, Secretary of State under President Cleveland, denied passports to US-born children of foreign diplomats and temporary foreign nationals, explicitly stating they were not under US jurisdiction. This was not seen as radical then, nor should it be now.

Moreover, the executive order explicitly disclaims retroactivity. This is crucial. Opponents, either in error or in malice, continue to circulate false claims that Trump intends to strip existing citizens of their status. One prominent example is Sulaiman Ahmed, who posts on X under the handle @ShaykhSulaiman. Ahmed, a British journalist with academic credentials in philosophy and Islamic law, claimed that Trump’s EO would strip citizenship from figures like Vivek Ramaswamy. This is nonsense, though dressed in pseudo-intellectual garb. Ramaswamy was born in Ohio in 1985. The EO applies to future births, not past ones. Not only has Trump’s legal team made this clear in litigation, but the very notion of retroactive denaturalization is constitutionally dubious and would trigger immediate judicial scrutiny. It would also run afoul of the Fifth Amendment’s Due Process Clause.

That such a basic fact eludes a man with an LLB in law is less an indictment of Trump than of British legal education. To say that Vivek would be "sent back to India" is like saying Benjamin Franklin should be deported to Boston because his parents were not yet Pennsylvanians when he was born. It is nonsense with a rhetorical license.

What, then, is the purpose of this policy? To restore coherence to citizenship and deter abuse of the current loophole, which has fueled birth tourism and chain migration. As the amici brief submitted by twenty-two Republican-led states rightly notes, the prevailing interpretation incentivizes illegal entry for the express purpose of securing citizenship for offspring. The effect is to allow foreign nationals to circumvent immigration law through the accident of geography. This was never the intent of the Fourteenth Amendment, which was enacted in 1868 with a very specific historical purpose: to secure citizenship for freed slaves in the aftermath of the Civil War. Prior to its ratification, many formerly enslaved individuals were denied citizenship by virtue of their race and status, even if born in the United States. The amendment was designed to rectify this injustice by ensuring that those born within the country and owing political allegiance to it could not be excluded from the rights and protections of citizenship. It was never conceived as a global guarantee to anyone who could give birth on American soil, regardless of immigration status or legal ties to the country.

The policy is also eminently reasonable. It does not deny birthright citizenship to those born here to lawful permanent residents. It does not strip citizenship from anyone. It merely applies a constitutional filter at the front end, asking: do the parents have a permanent legal and political bond to the US? If not, the child’s status is a matter of the parents’ home country. This standard exists in many nations, including most of Europe. Canada and the UK have each narrowed their birthright citizenship policies in recent decades without descending into fascism, as critics seem to suggest will happen here.

Indeed, the critics’ real fear is not that Trump’s EO will fail, but that it will succeed. That it will prompt a long-overdue judicial reconsideration of the Citizenship Clause’s meaning. That it will expose the intellectual fragility of their cherished assumptions. And that it will resonate with a public tired of legal fictions and open-border ideology masked as compassion.

The executive order’s real achievement is that it reframes the debate from emotive slogans to legal meaning. Are we a country defined by laws or by loopholes? If the former, then jurisdiction must mean more than geography. It must mean allegiance.

This is not a radical idea. It is the very principle that makes a sovereign nation possible. And it is time we return to it.

If you enjoy my work, please consider subscribing https://x.com/amuse.