After SCOTUS ruling, we can’t be taken as fools when it comes to the definition of citizenship eligibility

“This will not, of course, include persons born in the United States who are foreigners,” declared Sen. Jacob Howard (R-Mich.) back in 1866. Howard was discussing the Fourteenth Amendment’s citizenship clause, which states that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.”

Howard knew what he was talking about. He wrote the clause. He based it on the Civil Rights Act of 1866, which defined “citizens” as “all persons born in the United States and not subject to any foreign power.” By definition, that excludes citizens of any other country.

After decades of hedging against Howard, the Supreme Court definitively threw his intent out the window on Tuesday. The bench ruled in a 5-4 decision that the clause grants unrestricted citizenship to virtually all individuals born on American soil. Practically speaking, the only newborns excepted are those of foreign diplomats. 

The ruling voids President Trump’s executive order barring citizenship to children born of parents present illegally or on a lawful but temporary basis. That includes as many as 250,000 babies a year. 

Conceived in the aftermath of the Civil War, the citizenship clause was written to ensure that freed slaves and their children counted as citizens. It was not written to enable “birth tourism” or the barbarous “surrogacy networks.” These schemes cater to foreigners specifically to produce American citizens—or worse, to sneak in children of hostile foreigners.

Justice Ketanji Brown Jackson used hip-hop slang in her opinion favoring this travesty of a ruling. The creators of the Fourteenth Amendment “understood the assignment,” she wrote, referring to a song by the rapper Tay Money. The “assignment,” in Jackson’s view, appears to be to import as many new Democratic voters as possible, since the Left can’t seem to win with the native-born population. 

Justice Clarence Thomas has a better understanding of the citizenship clause. He notes that it gives lustre to the idea of American citizenship. Unfortunately, as he adds in his dissenting opinion, the court’s ruling “devalues” that very citizenship. 

The Supreme Court’s ruling runs against the prevailing sentiments of most Americans. A May Harvard/Harris poll shows 56% of the country favors the deportation of all illegal immigrants. Some thinkers who believe America should be allowed to protect its own borders are predicting the end of America as we know it. “If your ruling requires you to suicide your civilization,” White House adviser Stephen Miller told Fox News, “your reading of the Constitution is wrong.” 

But solutions can be found. The most obvious move — though it’s a long shot — would be for Congress to adopt an amendment redefining citizenship eligibility in unambiguous terms to exclude those who come here illegally or temporarily. Sen Rand Paul (R-Ky.) proposed such an amendment in April. If adopted, his amendment would narrow the category of individuals “subject to the jurisdiction of the United States” to US citizens and foreign nationals who have permanent and active residency or who serve in the military. Thus, only the children of those people would get birthright citizenship.

This more focused definition would align US policy on birthright citizenship with that of about 170 other countries, including all of our adversaries, who do not allow it.

Simpler solutions are possible too. President Trump has suggested he would support legislation to make the circumstances that allow for birthright citizenship harder. This already includes, for example, limiting illegal border crossings, which have been practically eliminated in his second term. You can’t drop an anchor baby here if you can’t get here in the first place. And he has overseen some 3 million repatriations — voluntary or otherwise — since returning to office and promises more. 

And more can be done. On the same day as the Supreme Court’s ruling, Rep. Andy Ogles (R-Tenn.) announced his “Anchors Away Act.” This would prohibit pregnant foreigners from entering the country. There’s already precedent for such a move — immigration officers can deny a woman entry if they believe her reason for entry is birth tourism. The Justice Department issued a memo the same day urging the prosecution of unlawful birth-tourism schemes. 

The Supreme Court’s ruling may have sold out the country’s national interest. But Republicans should understand their assignment. 

Paul du Quenoy is President of the Palm Beach Freedom Institute.