Blood v. Soil
CrowdSource 1.27.2025
Welcome to CrowdSource, your weekly guided tour of the latest intellectual disputes, ideological disagreements, and national debates that piqued our interest (or inflamed our passions). This week: the legal and political debate over birthright citizenship.
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Of Memos and Men
The Trump administration has issued an executive order challenging the legality of birthright citizenship. It proposes a new reading of the Fourteenth Amendment:
The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”
Last week, two influential right wing scholars argued over the White House’s legal reasoning.
Which Jurisdiction? The Claremont Institute’s John C. Eastman, author of the infamous “coup memo” supporting Trump’s bid to overturn the 2020 election results, argued that people born to parents with legal ties to another country do not qualify for American citizenship:
The … Citizenship Clause therefore turns on what the drafters of the amendment, and those who ratified it, meant by “subject to the jurisdiction thereof.” Was it merely a partial, temporary jurisdiction, such as applies to anyone (except for diplomats) who are subject to our laws while they are within our borders? Or does it instead apply only to those who are subject to a more complete jurisdiction, one which manifests itself as owing allegiance to the United States and not to any foreign power?
Right of Soil. Responding to Eastman, the Civitas Institute’s John Yoo, author of the notorious “torture memos” which provided legal cover for the CIA’s use of “enhanced interrogation techniques,” argued that the US has always considered citizenship to be derived from where you’re born (“right of soil,” or jus soli), and not from who your parents are (“right of blood,” or jus sanguinis).
There is no evidence that the drafters of the Fourteenth Amendment sought to work any revolution in the definition of citizenship. Except for a few years before the Civil War, the United States followed the British rule of jus soli rather than the rule of jus sanguinis.
After the Ruling
The executive order was shot down by a federal judge, who said: “I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order.” Notable reactions:
It’s More Complicated than That. University of Minnesota law professor
, author of a book about the Fourteenth Amendment, disagrees: “… I find it highly embarrassing for a judge to say something so unequivocally at a preliminary stage without the slightest acknowledgement that there is an entire literature that disagrees.”Defeat for Trump. Legal reporter Mark Joseph Stern says this was “one of the most important moments in Donald Trump’s second term … not any equivocation, not any ambiguity, just a huge smackdown of the president and his administration.”
Trump has a Plan. Shan Wu writes that Trump’s plan is to expand executive deportation power by exposing a contradiction in the law: “arguing that undocumented migrants are not subject to the jurisdiction of the United States is rather like saying the U.S. is powerless to enforce its immigration laws against them. This, of course, flies in the face of many other laws Trump hopes to enact.”
Chilling Effect. Writing before the ruling,
worries that, regardless of the outcome, Trump’s order will have a “chilling effect on skilled immigration.”
Intra-Right Disagreement
Trump’s executive order has reawakened a long-running conservative debate about birthright citizenship.
Pro. Among the establishment conservatives in the National Review, the arguments are usually in favor. Robert Verbruggen wrote a legal-historical defense of birthright citizenship in 2018, and his colleague Dan McLaughlin updated the argument last week.
Con. The scholars associated with the right wing Claremont Institute tend to oppose birthright citizenship, and published a book advancing arguments for its repeal. Among these scholars is Michael Anton, today Trump’s Director of Policy Planning (see this 2018 op ed) and political scientist Ryan Williams (who wrote against birthright citizenship last week).
The Difference. This intellectual debate hides a simple political difference.
While the establishment cons rely on historical arguments (Madison on jus soli; and Lincoln’s Attorney General on the Fourteenth Amendment), the Claremont scholars opposed what they see as a past “deliberate misreading” of the the Fourteenth Amendment.
The difference between these camps is ultimately political: the Claremont scholars are advocating for something they believe should be the case — that birth should not secure citizenship — and are trying to make that happen.
Con, but requires an Amendment. Another influential conservative immigration expert (one who does not fall easily into either camp) is Reihan Salam, author of Melting Pot or Civil War? A Son of Immigrants Makes the Case Against Open Borders (2018).
He’s written against birthright citizenship in the past, but he believes it might require a constitutional amendment.
From the Crowd
Thank you! It galls me to watch a “historical” movie that seems to be reaching out to me, the viewer, gauging ‘what do you want to see/hear/think that will confirm you in your present world? Well here you are then, we have just the thing for you. Here are 2020s’ issues and sensibilities dressed up in quaint costume’.
When actually what I really want is to have a sense of that other place, other time - what was it like? How was the experience of being alive then different from now? Create, o movie, this other world and take me there.
So thank you for spelling out the underpinnings of this travesty so clearly.
- agrees with Gasda as well:
Thank you for putting the banality of American cinema into words. I got Netflix to watch 6888, and while I was appalled at the explicit, dogged ferocity of the racism, I wanted more from the movie. I wanted to know more about these women in order to see, at the very least, from where they derived their strength. I wanted to see them as more than symbolic. I wanted to see them, hear them, and know them because they were so much more than they were portrayed.
I find myself watching & enjoying many of the Korean offerings on Netflix because of their story telling abilities and ability to handle complex situations with multiple characters and stories lines. Interactions are more nuanced and subtle. Possibly that's because they’re fascinating and novel but . . . I think it’s mostly that they provide more for the viewer to get involved with and enjoy.
Attorney
responds to ’ piece, “Mock Zuck, but Love Freedom”:
It is not, as you suggest, unconstitutional for a federal agency to *ask* a social media platform (or any other media outlet) not to publish certain information. (“The FBI more than once sent emails to Zuckerberg asking him to censor content about the pandemic and the famous Hunter Biden story. This . . . is also probably unconstitutional.”) As the Supreme Court has repeatedly reaffirmed, the First Amendment is only violated when request from the government to remove speech is coupled with a coercive threat. The Court most recently addressed this issue last term in NRA v. Vullo, in which it discussed the distinction between “permissible attempts to persuade and impermissible attempts to coerce.” The test used to distinguish persuasion (or mere begging) from coercive action, reaffirmed in Vullo, is as follows: “a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech.”
I don’t take issue with your thesis that free speech vibes are good. The problem is that Zuckerberg and his ilk aren't actually victims of federal government efforts to suppress viewpoints (see also, e.g., Murthy v. Missouri from last year regarding government requests that FB and others remove Covid misinformation). Facebook, X, etc. spread protected and unprotected speech alike (“true threats,” for example, have no constitutional protection). The government has the power to regulate the latter under the First Amendment and, in at least some cases, it has a responsibility to take reasonable and lawful steps to mitigate harm caused by certain protected speech (like health or election misinformation). The First Amendment gives Zuckerberg and co the right to decline the government's requests to remove protected speech (including misinformation) from their platforms, but those platforms are not protected from the mere request.
See you next week!
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A couple of things:
Trump's birthright policy "...proposes a new reading of the Fourteenth Amendment." No, it proposes going back to the old reading. The word 'jurisdiction' in the 14th amendment is there for a reason. It acknowledges that not everyone is subject to the jurisdiction of the federal government merely by being born in the USA. That's what the amendment was getting at. More recent court rulings have INTERPETED the amendment (in other words, made up their own meanings) to grant citizenship to anyone born here. It says no such thing, and intended no such thing.
As for censorship, get real. If a government is involved in it, it's government censorship. By way of example, if I 'influence' someone to commit a criminal act, then I am guilty of that criminal act, even if I wasn't directly involved. That's the law. If a government influences anyone to commit censorship, then that is a violation of the first amendment. And I shouldn't even have to argue this. Clearly, a healthy society encourages all points of view. Only totalitarian states encourage censorship.