How the justices botched the birthright citizenship case

Preventing birth tourism would respect the intention of the 14th Amendment.

- JOSH HAMMER

ANDREW HARNIK Getty Images PRESIDENT TRUMP speaks Wednesday at an event in North Dakota. The justices rejected his effort to restrict citizenship.

THE Supreme Court has committed a grievous moral and legal error in Trump vs. Barbara, the landmark case on birthright citizenship. In holding that the 14th Amendment confers automatic citizenship on virtually all children born on American soil, the court has severely vitiated the sanctity of American citizenship in this "America 250" celebration year, no less. Moreover, on a prosaic level, the court's majority botched the basic constitutional question.

As this column has explained, the 14th Amendment's Citizenship Clause was, per its principal author, Sen. Jacob Howard (RMich.), "simply declaratory of ...the law of the land already." As for "the law of the land already," that was the Civil Rights Act of 1866, ratified by Congress two years prior to the 14th Amendment. That statute deliberately withheld blanket birthright citizenship for the children of those who are "subject to any foreign power."

Thus, the Senate Judiciary Committee chairman at the time, Lyman Trumbull (R-Ill.), confidently stated during the amendment's ratification debate that "subject to the jurisdiction," the legally relevant 14th Amendment Citizenship Clause language, meant those "not owing allegiance to anybody else." This is why Native Americans, whose allegiances in the 19th century were to their tribes, were not covered; it was not until the Indian Citizenship Act of 1924 that these children were granted blanket birthright citizenship. And if Native Americans' children were not automatically covered, then illegal aliens' children certainly were not.