Revisiting the Birthright Citizenship and nbC Issues

[Elderberry]

The Post & Email by Joseph DeMaio

As dedicated P&E readers are well aware, there is now pending in the Supreme Court the case of Trump v. Barbara.  The case involves a challenge to President Trump’s Executive Order 14160 regarding the meaning of “birthright citizenship” under the 14th Amendment.  Following a post by the intrepid P&E Editor here, your humble servant addressed the issue here.

The Supreme Court granted certiorari review as to one of the two cases where President Trump had petitioned for review on Dec. 5, 2025.  Now, the matter is proceeding before the Court through briefing of the merits and culminating in oral arguments, likely in early 2027.

Solicitor General John Sauer’s Opening Brief (“OB”) on the merits is – with but one minor editorial comment discussed in epilogue later – beyond merely persuasive: it is compelling.  Moreover, that is a conclusion which the Supreme Court – assuming that a majority of its members will find the backbone to adhere to judicial principle – should confirm in its ultimate decision.  As a side-note, and to its credit as well, the OB refers to “undocumented immigrants” by their true names: “illegal aliens.”

https://www.supremecourt.gov/DocketPDF/25/25-365/392236/20260120203524283_25-365BarbaraGovtBr.pdf

But do not take your humble servant’s word for it, as he may be seen as somewhat biased.  Read the brief (linked above) yourself.  That exercise will reveal and document that the authors of the 14th Amendment intended that it operate to confer U.S. citizenship on emancipated African slaves, and not to bestow such citizenship upon illegal aliens or, for example the offspring of such illegal aliens who have invaded this nation from Mexico, Guatemala, China or Somalia…, or, for that matter, from Sweden, France, Australia or Ireland.

More: https://www.thepostemail.com/2026/01/26/revisiting-the-birthright-citizenship-and-nbc-issues/

[Kamaji]

We shall see …..

[Bigun]

We shall see …..

  Indeed we will. (I encourage everyone to take the time to read the Solicitor General's brief linked above.)

[libertybele]

Indeed we will. (I encourage everyone to take the time to read the Solicitor General's brief linked above.)

Well, we'll see what happens .... SCOTUS shouldn't even hesitate over the interpretation of the 14th amendment as it's quite clear what the 'authors' intended.

I think though that the mayhem in MN may impact their decision. **nononono*n   They buckle on this and our Republic is pretty much doomed.

[Bigun]

Well, we'll see what happens .... SCOTUS shouldn't even hesitate over the interpretation of the 14th amendment as it's quite clear what the 'authors' intended.

I think though that the mayhem in MN may impact their decision. **nononono*n   They buckle on this and our Republic is pretty much doomed.

There is one sentence in that brief that is key. It begins; "It wasn't until...". See if you can find it.

[berdie]

Well, we'll see what happens .... SCOTUS shouldn't even hesitate over the interpretation of the 14th amendment as it's quite clear what the 'authors' intended.

I think though that the mayhem in MN may impact their decision. **nononono*n   They buckle on this and our Republic is pretty much doomed.

They shouldn't hesitate. The intent was clear during the time the 14th was written. But will they?

[Bigun]

Well, we'll see what happens .... SCOTUS shouldn't even hesitate over the interpretation of the 14th amendment as it's quite clear what the 'authors' intended.

I think though that the mayhem in MN may impact their decision. **nononono*n   They buckle on this and our Republic is pretty much doomed.

That will be the final nail in the coffin for sure.

[Kamaji]

Indeed we will. (I encourage everyone to take the time to read the Solicitor General's brief linked above.)

You might want to read some of the other materials as well.  You can also dive into the broader interpretive canons that would apply. 

But then, preconceived notions are just so much more comfortable. 

[Bigun]

You might want to read some of the other materials as well.  You can also dive into the broader interpretive canons that would apply. 

But then, preconceived notions are just so much more comfortable.

Canons?? You mean rules members of the bar have imposed on themselves to keep them all on the reservation?

[libertybele]

There is one sentence in that brief that is key. It begins; "It wasn't until...". See if you can find it.

Still looking .... going back and instead of speeding through the very long document and getting the 'guts' out of it, I will go back and reread it .... its going to take awhile, but I'll find it.

[bigheadfred]

I'm guessing what you you are referring to is that American Indians weren't included until the 1920's and that , to me, means the 14th wasn't all inclusive. @Bigun

[Bigun]

I'm guessing what you you are referring to is that American Indians weren't included until the 1920's and that , to me, means the 14th wasn't all inclusive. @Bigun

"Only decades after Wong Kim Ark did a latter-day
misconception of the Citizenship Clause take root..."

I'm sorry. I misremembered the exact verbage. @libertybele @bigheadfred

[Kamaji]

Canons?? You mean rules members of the bar have imposed on themselves to keep them all on the reservation?

 

Apparently, it’s not really a constitution, but just “The World According to Bigun”.   Amazing that human beings 100 or 200 years ago were able to divine what Bigun really wanted, and set it to paper, and it’s just us evildoers who are trying to replace the Meaning-According-to-Bigun with esoteric nonsense like plain meaning (which, BTW, puts Scalia and Thomas into the camp of the evildoers, because they, too, utilize the canons of construction to interpret the Constitution).

So, tell me, have you decided yet what sort of kompromat you’re going to charge Kavanaugh and Barrett with?

[Bigun]

Apparently, it’s not really a constitution, but just “The World According to Bigun”.   Amazing that human beings 100 or 200 years ago were able to divine what Bigun really wanted, and set it to paper, and it’s just us evildoers who are trying to replace the Meaning-According-to-Bigun with esoteric nonsense like plain meaning (which, BTW, puts Scalia and Thomas into the camp of the evildoers, because they, too, utilize the canons of construction to interpret the Constitution).

So, tell me, have you decided yet what sort of kompromat you’re going to charge Kavanaugh and Barrett with?

It very definitely is a constitution - or was - until the only group capable of doing so - lawyers - decided to turn it into something it was never intended to be.

[Kamaji]

It very definitely is a constitution - or was - until the only group capable of doing so - lawyers - decided to turn it into something it was never intended to be.

So, what kompromat do you have on Kavanaugh and Barrett?

C’mon, what is someone holding over their heads so that they won’t rule in favor of The-World-According-to-Bigun?

[Bigun]

So, what kompromat do you have on Kavanaugh and Barrett?

C’mon, what is someone holding over their heads so that they won’t rule in favor of The-World-According-to-Bigun?

So, you already know what their OPINIONS will be. How can that be?

[Kamaji]

So, you already know what their OPINIONS will be. How can that be?

I’m just playing devils advocate with the percentages. 

We all know how Jackson, Sotomayor, and Kagan will hold, do we not?

[Bigun]

I’m just playing devils advocate with the percentages. 

We all know how Jackson, Sotomayor, and Kagan will hold, do we not?

Jackson, very likely. Sotomayor, probably. Kagan, might fool us.

[Smokin Joe]

I'm guessing what you you are referring to is that American Indians weren't included until the 1920's and that , to me, means the 14th wasn't all inclusive. @Bigun

I noticed that some time ago and came to the same conclusion.

[Kamaji]

Jackson, very likely. Sotomayor, probably. Kagan, might fool us.

Very doubtful.

So that brings us to Kavanaugh and Barrett.  Both are textualists - of course, as Kagan noted recently, "we're all textualists now" - and both tend to apply the ordinary meaning, or the plain meaning (the two are not coterminous, however, as "ordinary meaning" tends to refer more to the everyday usage of a term, whereas "plain meaning" will incorporate the more legal meaning of a term) of the language used.  In this case, the phrase in question is "subject to the jurisdiction thereof" and the plain meaning of that term is that a person is subject to the jurisdiction of a sovereign if that person does not have immunity from prosecution under that sovereign's domestic law.  Illegal aliens, whether domiciled in the U.S. or simply passing through, do not have immunity from prosecution under U.S. domestic law; accordingly, they are subject to the jurisdiction of the United States.

I give odds of 70% to 80% that Kavanaugh and Barrett take that approach, which gives another two.

Then there's Gorsuch, who is an interesting textualist inasmuch as he tends to be more of a literalist.  A literalist plain meaning of the term also gets us to the same result, however.

I give odds of 60% to 70% that Gorsuch takes that approach, which gives another one.

That leaves Roberts, who, based on his ruling history, generally seems to take his role as Chief Justice way too seriously, inasmuch as he is often trying to maximize consensus on the Court.

Since I already have five or six, I give odds of 80% that Roberts holds with the majority in order to give as much oomph to the holding as possible.

That gives me a count of six or seven in favor of the straightforward plain meaning of the term.

The percentages favor the conclusion that the Court will hold that the term "subject to the jurisdiction thereof" means exactly what it says under the "plain meaning" (as opposed to "ordinary meaning") approach to interpretation.

No need to discover penumbrae and special secret meanings in the term.