The Post & Email by Leonard Daneman
QUESTION: Is Birthright Citizenship granted to all children born on U.S. soil controlled by ‘common law,’ or ‘statutes and the constitution.’
Do you recall the advertising for CERTS, ‘Is it a Breath Mint, or a Candy Mint?’ This is the sort of question that vexes the United States after President Trump ordered no Birthright Citizenship for children of illegal aliens. The ACLU has already filed a complaint and the issue will be heard by the judiciary. The case will reopen the debate of whether the 14th Amendment’s ‘born in the United States’ clause is all inclusive to children born on U.S. soil, or whether it was only granting civil rights and citizenship to freed slaves.
What is at risk is whether the Supreme Court will socially engineer the law, following Justice Hugh’s hubris of, “the Constitution is what the judges say it means . . .” Or, will the court rely on the original intent of the 14th Amendment and its legislative history, and explanation of the amendment’s actual authors during ratification hearings.
“Today, the determination of national status in most parts of the world, as for the Virginia colonists in 1606, is a matter of positive law-either statutory or constitutional. But Calvin’s Case began a three-century period in which the rule determining citizenship in the English-speaking world, a rule based on place of birth, was self-consciously the product of judicial decisions.” ‘Natural Law and Birthright Citizenship in Calvin’s Case (1608)’ Polly J. Price,[1] Yale Journal of Law & the Humanities Vol.9: 73, 77
The cited law review juxtaposes the history of ‘common law’ or judicial determination of jus soli, ‘place of birth,’ against the statutory or constitutional jus sanguinis ‘right of blood,’ i.e., sanguinity from one parent, usually the father.[2]
In the United States and Britain (contrary to Price’s erroneous analysis), their models of citizenship in 1790 and 1772 statutes respectively were strictly jus sanguinis. United States nationality law only departed from this in 1866 and 1869, reverting to jus soli, but only as a resort to cure the fact that freed slaves had fathers without nationality to confer by sanguinity. Without any possible natural succession of allegiance from the father, the 1866 Civil Rights Act and the 14th Amendment resorted to ‘born in the United States,’ on the condition that the father had no subjection to any foreign power, i.e., ‘under the jurisdiction thereof.’ These conditions were both statutory and constitutional, not determined by any common law.[3]
More:
https://www.thepostemail.com/2025/01/23/birthright-citizenship-president-trump-and-the-constitution-versus-the-supreme-court/
