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See: Supreme Court doesn’t have 5 votes to uphold birthright citizenship: ex-AG
6/29/2025
“Former U.S. Attorney General Alberto Gonzales during an interview on Sunday speculated that the U.S. Supreme Court ruled against nationwide injunctions in a landmark case as a compromise after failing to secure five votes on the issue of birthright citizenship.”
Of course the Supreme Court doesn’t have 5 votes to affirm unconditional birthright citizenship. That’s because those who wrote and agreed to ratify the 14th Amendment provided a qualifier “. . . and subject to the jurisdiction thereof . . . “ which does in fact need to be satisfied for birthright citizenship.
Let us keep in mind our constitutional system requires and adherence to the text of our Constitution, and its documented legislative intent, which gives context to its text, e.g., see Hawaii v. Mankichi, 190 U.S. 197 (1903), where our Supreme Court emphatically points out:
”But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :
“A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.”
And in the case of the 14th Amendment’s Section one, the qualifier “. . . and subject to the jurisdiction thereof . . . “disqualifies, for United States Citizenship, a child born to an illegal entrant foreign national while on American soil. How does one arrive at this conclusion? By adhering to a preponderance of evidence expressing “legislative intent” found in the debates during the framing and ratification process of the 14th Amendment.
As an example of legislative intent see, Senator Reverdy Johnson who notes the absolute necessity connected to citizenship upon birth as follows:
"[A]ll that this amendment provides is, that all persons born in the United States and not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”
Parents who are subject to the authority of the United States, within the meaning of the Fourteenth, owe allegiance to the United States, enjoy political privileges such as voting, and have military service obligations when called upon, which is not the case of parents who are foreign nationals, and especially of foreign nationals who illegally enter the United States who give birth to offspring.
This and several other examples confirm the qualifier “. . . and subject to the jurisdiction thereof . . . “ must exclude from United States Citizenship, the offspring of illegal entrant foreign nationals born on American soil. Our very own Supreme Court noted this exclusion in Elk v. Wilkins ___ that the Citizenship Clause’s jurisdictional qualifier means “not merely 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.”
Additionally, considering that the 14th Amendment’s Section 5, gives Congress, and only Congress, the exclusive power to adopt “appropriate legislation” to enforce the Amendment, it would be an encroachment upon Congress’s exclusive legislative authority for our Supreme Court members to attach their personal meaning to the Fourteenth Amendment’s qualifier, by which United States Citizenship is granted.
Let us also recall that in 1924 Congress did exercised its exclusive power to enforce the Amendment by appropriate legislation and adopted the “Indian Citizenship Act of 1924”, extending United States citizenship to Indians as outlined in the Act. Since then, there is no “appropriate legislation” to be found under which Congress has extended citizenship, to the offspring of illegal entrant foreign nationals born on American soil.
Moving on, it is important to note that under Article 2 of our Constitution, our President gets to exercise administrative policy changes, such as was exercised by Biden when he was President. Not only did President Biden’s Administration allow, but effectively invited, millions upon millions of poverty-stricken, poorly educated, low-skilled, diseased, disabled, criminal, un-vetted terrorist and religious fanatic foreign nationals to flood across our border and settle in various communities where they began to inflict, and to this very day are inflicting, pain and suffering on American citizens and their children.
Keep in mind there is no wording in our Constitution, nor a federal statute, or a Supreme Court ruling, which pronounces that a child born on American soil to an illegal entrant foreign national is a U.S. citizen upon birth. Current public policy, and only “policy” not “law”, now recognizes the offspring of an illegal entrant foreign national born on American soil as a citizen of the United States upon birth.
The policy making authority of our President found in Article 2, is a hallmark of our Republican Form of Government, which also provides for elections in order to accommodate for change of existing public policy.
It seems abundantly clear from the above, that President Trump’s E.O., "Protecting the Meaning and Value of American Citizenship” is not only constitutional, but is specifically designed to effectuate public policy change which an overwhelming number of American citizens voted for when electing President Trump. And thus, our S.C. members must not get involved in this policy making change authority, except to educate the public how our system works, and that elections have consequences, and one of those consequences is the setting new federal public policy which no longer recognizes the offspring of illegal entrant foreign nationals born on American soil, as citizens of the United States upon birth.
JWK
“If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single state, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges." - Joseph Story
