The Claremont Institute Files Brief Challenging Abuse of Birthright Citizenship
The Claremont Institute’s Center for Constitutional Jurisprudence has submitted an amicus curiae brief urging the reconsideration of automatic citizenship granted to children of temporary visitors and illegal aliens born in the United States.
The brief, authored by Dr. John C. Eastman, specifically urges the Supreme Court to grant certiorari in Trump v. Washington and Trump v. Barbara to resolve key constitutional questions surrounding the Fourteenth Amendment’s Citizenship Clause after years of confusion sown by unelected bureaucrats and, more recently, lower courts.
“The Fourteenth Amendment codified and constitutionalized the language of the 1866 Civil Rights Act, which expressly conferred automatic citizenship only on children born to parents who were not subject to any foreign power,” wrote Eastman, founding director of CCJ.
“This understanding … was confirmed by the leading treatise writers of the day. And it was put into effect by Executive Branch officials in the 1880s rejecting the claims of citizenship advanced by children who had been born to temporary visitors from other countries,” he added.
The Claremont Institute recognizes that citizenship under the Fourteenth Amendment should only extend to those born to parents fully subject to U.S. jurisdiction because the amendment’s ratifiers intended “subject to the jurisdiction thereof” to require complete allegiance—not mere territorial presence.
As the brief notes, two U.S. senators instrumental to the passage of the amendment and the 1866 Civil Rights Act explicitly confirmed that they did not intend for children born to those owing allegiance to foreign powers to receive automatic citizenship by birth alone.
That principle did not spring from thin air. The repudiation of the feudal doctrine of birthright subjectship is evident as far back as the Declaration of Independence, which transformed the legal conception of political membership from one based on birthright subjectship to one based on mutual consent.
Meanwhile, the evidence to the contrary cited by the lower courts is inconclusive at best.
“The lower courts cite a patchwork of historical sources ranging from early Supreme Court cases to fragments of congressional debates and isolated comments from later decisions,” reads the brief. “But none of these authorities, properly understood, support their conclusion that the law on this subject is ‘well-settled.’”
The Center’s brief brings needed clarity and historical rigor to one of America’s most consequential constitutional debates. The Supreme Court should formally settle the true scope of the Citizenship Clause and restore the Founders’ intention to condition citizenship on genuine allegiance and consent.
Click here to read the amicus brief.
About The Claremont Institute
The Claremont Institute is a leading think tank dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Through litigation, scholarship, teaching, and policy advocacy, Claremont defends the Constitution and equips lawmakers and leaders to uphold its guarantees.
