Thread by @molmccann

John Eastman has articulated many times the clear argument against birthright citizenship. His argument is straight forward, it rests on history and precedent, and it avoids the absurd result we have today. Here are his basic points: 🧵

The Citizenship Clause of the Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The first problem is redundancy. If “subject to the jurisdiction thereof” simply means, as common parlance accepts, that one is subject to the law because of physical presence in the territory, that clause is redundant—"born in the United States” covers that base. An interpretation of a legal text that creates a redundancy is disfavored.

“Subject to the jurisdiction thereof” should be interpreted to mean owing sole allegiance to the United States. This is confirmed by one of the primary drafters of the clause, Sen. Lyman Trumbull, who stated “subject to the jurisdiction” meant subject to “complete” jurisdiction—“[n]ot owing allegiance to anybody else.”

Initially, the Supreme Court agreed. Although dicta, both the majority and the dissent in the Slaughter House Cases agreed that the 14th Amendment’s “subject to the jurisdiction” clause excluded the children of citizens and subjects of foreign states who just happen to be born in the United States.

SCOTUS confirmed this understanding in Elk v. Wilkins when it denied birthright citizenship to an Indian born on a reservation who claimed citizenship as an adult. The Court held that the claim of birthright required him not to be “subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”

Astoundingly, the Supreme Court completely reversed course in United States v. Wong Kim Ark. In that case, a Chinese man born to permanent residents (who were barred by federal statute from obtaining full citizenship) claimed birthright citizenship, and the High Court held Wong Kim Ark qualified for the 14th Amendment’s birthright citizenship.

As Eastman points out, the gloss placed on Wong Kim Ark is much broader than even its holding, which addressed the child of legal permanent residents. Birthright citizenship should, at the least, be limited to children of parents here legally. The situation we have today is, again, absurd and untenable.

Thank you, @DrJohnEastman! It slipped my mind that you are on Twitter, or I would have tagged you. I was rushing to post as my son woke from his nap.

I clerked for Judge Edith Jones, and she always speaks so highly of you. Thank you for your scholarship and defense of the Constitution!