Ep 406 | Born American? The Billion-Dollar Battle Over Birthright

Let's start with what the court actually did.

We first sounded the alarm on birthright citizenship here in episode 330, and now the Supreme Court has forced the issue.

The 14th Amendment says that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens.

Six words carry the whole argument.

subject to the jurisdiction thereof.

In Trump versus Barber, Chief Justice John Roberts, writing for a 6-3 majority, held that children born here to parents who are here unlawfully or only temporarily are subjects to that jurisdiction and therefore Americans at birth.

In the majority opinion, Roberts wrote that citizenship is the right to have rights, and that framers extended that promise to nearly every freeborn person in this land.

It's beautiful language, but it papers over the hard question the framers actually wrestled with.

In the majority opinion, I think it's wrong.

They leaned on an 1898 case, United States versus Wong Kim Ark, and the old common law idea of the right of the soil.

But here's what they glossed over.

Wong Kim Ark was born in California to Chinese parents who are legal permanent residents of the United States.

The court in 1898 never squarely decided the question that we face today, whether the children of people here illegally or here for two weeks on a visa automatically become Americans.

That question waited more than a century.

And in 2026, this court answered it with a strikingly selective reading of history.

because the 14th Amendment was not written to be an open door for the world.

It was ratified in 1868 for one towering righteous purpose, to secure citizenship and equal protection for freed slaves and their descendants after the Civil War.

When that clause was debated in 1866, the central concern was allegiance.

Senator Jacob Howard, who introduced it, tied citizenship to those who owed no allegiance to a foreign power.

The freed slaves, they owed no allegiance to any other nation.

America was their only home.

That is who this was written for.

Now here's the history the majority walked right past, and it's personal for me.

In 1884, in a case called Elk v. Wilkins, the Supreme Court denied citizenship to any Native American man who had left his tribe, lived among his neighbors, and paid his taxes.

Why was he denied? Because the court said he still owed allegiance to his tribe.