Ohh That's Rich - birthright citizenship 6-3 to 5-4 ruling explained

[Ms. Toad]

37. I am United States attorney

Last edited Sat Jul 4, 2026, 04:46 PM - Edit history (2)

I am a United States attorney and have been for nearly 3 decades. I also clerked for a state appellate court judge, and in that capacity had to interpret the US constitution for cases which involved Federal Constitutional questions. I interned for a federal district court judge (and in that capacity ghost-wrote a constitutional law decision). I also taught law for nearly a decade, including constitutional law. In other words I have far more training in our judicial system and the interpretation of constitutional law than your American History class.

I was born in the United States and have lived here all my life. My avatar is the Canadian flag, because I am in the process of having my Canadian citizenship recognized under the recent Canadian decision (and legislation) which recognizes the citizenship of all descendants of Canadians. I have both a great grandfather and a great-great grandfather who were born in Canada. Once it is recognized I will be a dual citizen of both the United States and Canada. At this point, I have more affinity with Canada than I do with the United States.

As I have indicated numerous times - interpreting the constitution is not as simple as looking at two words which seem clear to you. It is not even as simple as looking at the history of how the constitution or amendment came about - although historical analysis definitely plays a role.

The phrase **and subject to the jurisdiction thereof** unquestionably carved out at least one exception to **all persons** I don't personally believe the exception includes the children of people in this country without the proper legal authorization. If they aren't subject to the jurisdiction of the United States, all we could do if they violated our laws would be to expel them (like we do foreign diplomats who misbehave). But we don't - we toss them in jail - which means they are subject to the jurisdiction of the US. Fortunately, 5 of the justices agree with me.

Unfortunately, there are multiple meanings of jurisdiction in the law - and one such meaning is the one Trump et al tried to exploit. Jurisdiction over a person in a civil matter (US law, just not criminal law) requires that person be domiciled in the geographic area of the court (which, if you paid attention to the discussions, played a key role - and why they were talking about domicile and allegiance). Domicile is a complex concept - but the simplest version is physical presence (i.e. the parent was physically present in the United States) with an intent to remain (that allegiance they were talking about). Without jurisdiction over the person, a civil court cannot issue a binding judgment. In other words, in some sense, if the parents are just here temporarily (they either don't have legal status, or they just crossed the border to have a child, etc.), they are not domiciled here - and they (and their children) would not be subject to the jurisdiction of any federal civil court because no court could issue a binding judgment against them. (There are other ways to get jurisdiction over a person, but this is the one that they were arguing about.)

Again - this is a real stretch, since the people Trump was targeting are subject to the criminal jurisdiction of the United States - in a way that the children of foreign diplomats are not. And everyone agrees that the exception (subject to the jurisdiction thereof) applies to the children of foreign diplomats born here.

But I'm not one of the 9 who has the final say on interpretation of the constitution. So my opinion means nothing - and, unfortunately, 4 of the 5 who do make the decision found Trump et al's suggested interpretation convincing. And if one of the 5 who agree with me resign/die/vacate the office, Trump will appoint someone he expects to agree with his interpretation. If the constitutional right to birthright citizenship is narrowed by a 5-4 decision aligned with the current dissent, then Congress will be free to enact a statute which excludes the children born in the US to those in the country only temporarily - Kavanaugh's invitation. (No amendment would be required, because the interpretation of the constitution has changed. Just like it did in Roe v. Wade.)