Oral Arguments Before the Supreme Court

On Wednesday 1 April 2026 the Supreme Court of the United States (SCOTUS) heard oral arguments in Trump v. Barbara, the case brought by President Donald J. Trump challenging the citizenship clause of the 14^th Amendment on the grounds that the liberal left has misinterpreted the full meaning of the text and relies on historical “exceptions” that are arguably too narrow, a position reinforced by a later SCOTUS decision that created the concept of “birthright citizenship”.  These so-called “exceptions” are not defined or included anywhere in the 14^th Amendment.  They were debated by Congress during discussions that formed the Civil Rights Act of 1866.

The exceptions are a very narrow trio of carve-outs for children of foreign diplomats, children born to enemy forces during a hostile occupation, and members of Native American tribes.  That’s it.  There couldn’t possibly be any other classifications of people that would expand the list of exceptions.  That’s the stance of the defense, as cited in U.S. v. Wong Kim Ark below.

At the time, Native American tribes were not paying taxes and out of respect they were granted autonomous quasi-sovereignty to govern their own affairs.  That has since been changed and obviously Native Americans are U.S. citizens. 

At the crux of the argument is the clause “and subject to the jurisdiction thereof”, a conditional and crucial part of Section 1 of the 14^th Amendment, that raises questions of domicile and allegiance.

Trump’s case was presented by U.S. Solicitor General John Sauer, who led off the 2+ hour hearing with an opening statement, followed by questions from the Justices.  It got “into the weeds” pretty quickly with a lot of discussion over the definition of “domicile” and how it relates to the legal residency of the class of people under review for their acceptance as American citizens, that is “illegal immigrants”, a class that did not exist, nor could be foreseen in 1868.  As General Sauer explained, domicility requires legal status and intent to remain.  Illegal immigrants do not meet the standard to be considered “domiciled”, as by definition, they are not present in the United States legally.

Proponents of the “birthright citizenship” defendants were represented by ACLU Attorney Cecillia Wang.  Keep in mind, the American Civil Liberties Union (ACLU) is a non-profit civil rights organization founded in 1920 that projects a righteous existence but is now, in fact, a collection of far-left activists who sit by the phone ready to pounce on every complaint the Democrat Party wishes to air.

Following the segment presented by General Sauer, Ms. Wang was granted the opportunity to present her arguments and take questions from the Justices.  Their defense of the principle of “birthright citizenship” is based entirely on a flawed 128-year old Supreme Court decision and an egregious misinterpretation of the 14^th Amendment.  In order to accept their position, they expect you to conveniently disregard the conditional portion of Section 1 and consider only the first part of the sentence.  Reasonable minds operate on clarity.  Deception artists rely on selective half-truths.   

The Civil Rights Act of 1866

Solicitor General Sauer mentioned a key clause in the Civil Rights Act of 1866, the first piece of legislation to address the issue of citizenship, granting citizenship and civil rights to slaves freed by the Civil War.  Senator Lyman Trumbull of Illinois introduced the bill on 5 January 1866, it was vetoed by President Andrew Johnson and Congress overrode his veto on 9 April 1866.  The Civil Rights Act of 1866 provided the blueprint for the 14^th Amendment.

The Congressional Record contains debate on the language of the bill and how it should be interpreted, essentially clarifying the intent of the 39^th Congress (1865-1867) when they codified the final draft.  It was during those debates that discussion of the clause “not subject to any foreign power” was raised for the purpose of excluding the right to citizenship for certain classes of people.

Section 1 of the Civil Rights Act of 1866

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; . . . “ 

In those debates, Trumbull, then Chairman of the Senate Judiciary Committee, repeatedly defined the phrase “not subject to any foreign power” as not owing allegiance to any other country in the context that there is a definite distinction between the concept of “territorial allegiance” and “complete allegiance”.

Territorial allegiance simply means that all persons are obligated to obey local laws of whatever territory they may be presently located within.  That territory holds territorial jurisdiction over the conduct of all persons within its boundaries, but does not necessarily hold complete jurisdiction over all persons. Complete allegiance refers to ones’ political affiliation, or the sovereignty to which that person owes his fealty, regardless of where that person may presently exist.  That is the critical distinction. 

In the Congressional Record, Trumbull explicitly addressed the cases of tourists, and temporary residents, in addition to children of foreign diplomats in that the United States had no right to confer citizenship to those who were subject to the political allegiance of their parents. [1] 

The Civil Rights Act of 1866 was enacted to grant citizenship and civil rights to slaves freed by the Civil War.  It was never intended to grant citizenship to every baby whose mother from anywhere in the World happened to give birth on U.S. soil.  Citizenship requires the complete, full permanent allegiance to the United States.

We will see below that the Supreme Court somehow disregarded those classes of people in an even narrower set of exceptions when they wrote their opinions in Wong Kim Ark.

The 14^th Amendment

At the core of President Trump’s argument against birthright citizenship is the actual language of the citizenship clause of the 14^th Amendment [2]

The 14^th Amendment was proposed by Congress on June 13, 1866, and ratified on July 9, 1868, as part of the Reconstruction Amendments following the Civil War, ensuring citizenship and civil rights protections for formerly enslaved people and extending due process and equal protection guarantees to the states.

(Constitution.gov, National Archives)

The pertinent part in this case reads:

Section 1

“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.”

To be accentuated, is the conditional language “and subject to the jurisdiction thereof”, a close facsimile to the phrase “not subject to any foreign power” in Section 1 of the Civil Rights Act of 1866 (see above).

What does that mean?

First we must acknowledge what it doesn’t mean.  It doesn’t simply refer to all persons who are obliged to obey the law.  Obviously, all persons are expected to obey the laws of the territory upon which they are occupying.  The conditional clause would be unnecessary and redundant if that were the only consideration.  So obviously, it must mean something more than that.  It’s really not that complicated, when you understand the principle of “complete jurisdiction”.

It is not just a regulatory reference, which is territorial jurisdiction.  It refers to the additional condition so eloquently described by Trumbull in the Congressional Record debates for the Civil Rights Act, known as “complete jurisdiction”, in that any person, wherever they may located, either temporarily or with intent to establish domicile, is subject to the jurisdiction of the sovereignty to which they owe their allegiance.

Not to confuse anyone, but my previous reference to “territorial allegiance” and the term “territorial jurisdiction” here is nearly synonymous, but allegiance is possessed by the person and jurisdiction is the legal authority of the territory. 

In the instance that a legal immigrant comes to the United States with intent to live here permanently, an applicant must be at least 18 years of age, possess good moral character, and be a legal permanent resident for a minimum waiting period of 5 years before he/she can be legally naturalized, at which time they must renounce their allegiance to any other sovereignty in order to become a legally domiciled American citizen. 

For example, a French national visiting the United States retains her implied allegiance to France.  She is obliged to obey the laws but not suddenly subject to the complete jurisdiction of the United States upon setting foot on American territory.  Nor should her child born on American soil automatically become a citizen of the United States.  How is that any different than the exclusive exception carved out for diplomats?  It’s an absurd argument to insist it only applies to diplomats.

Justice Jackson offered a hypothetical example that pertained to a street crime on foreign soil, as if territorial jurisdiction was the only consideration.

The 14^th Amendment does not specifically describe the carve-outs, but it was expressly passed to constitutionalize the Civil Rights Act of 1866 that did establish those classes of people who should be excluded from the right to citizenship, including, but not necessarily limited to, the children of foreign diplomats, occupying forces, tourists, temporary residents, or foreign sojourners, and Native American Indians.  We now know that consideration of illegal immigrants, whether temporary, or not, is absurd.

For the record, on 8 Jun 1866, the Senate passed Joint Resolution H.J. Res 127 proposing the 14^th Amendment with a vote of 33-11, surpassing the required 2/3rds majority.  On 13 Jun 1866, the House agreed to Senate changes to the bill and passed the 14^th Amendment by a vote of 120-32.

Not a single Democrat in either chamber voted for the Amendment.

It was ratified by the required number of states (28 of 37) on 9 Jul 1868 and officially certified on 28 Jul 1868 as part of the Constitution.

United States v. Wong Kim Ark (SCOTUS, 1898)

The pillar of the argument for birthright citizenship by the entire liberal camp and their Propaganda Media Complex in their resistance to “everything Trump” is the 1898 Supreme Court decision U.S. v. Wong Kim Ark [3]

It is the landmark case that established the principle of jus soli, and created the notion of “birthright citizenship” relative to the citizenship clause of the 14^th Amendment.

The Kim Ark case presented to the Court was of a man born in San Francisco in 1873, to Chinese nationals who were not employed in any diplomatic capacity under the Emperor of China.  Both parties in the case agreed that his parents were “permanent domiciled residents” of the U.S., that they decided to return to China in 1890, that Kim Ark went with them temporarily and returned to California in July 1890, was admitted by the Collector of Customs on the sole ground that he was a “native-born citizen”, that a subsequent visit to China in 1894 and return in August 1895 resulted in denial of admittance based on the determination by the Collector of Customs that he was not a citizen of the United States.

I’m guessing that the determination upon his first return from China as a “native-born citizen” carried a lot of weight in the SCOTUS decision. 

In contrast, the core principle of the term “natural born citizen” which is a qualification to hold the office of President or Vice President, and should arguably be expanded to include all members of Congress.  It was nice to hear Justice Coney Barrett mention Vattel in her questioning, which goes to the concept of citizenship, in that we must acknowledge English Common Law, which  established the basis for much of our Constitution.

Emmerich de Vattel (1714-1767), was a Swiss-born philosopher, diplomat, and juror, most famous for his 1758 book, The Law of Nations that best describes the concept of “natural born citizen”.  Vattel, at the time, was considering the circumstances under which children born on foreign soil to diplomats were to be classified in terms of citizenship.  His conclusion was that any person, regardless of place of birth, should automatically become a natural born citizen of the sovereignty to which his/her father owes his allegiance.  The mother was inconsequential as women had very few rights at that time. 

Advocates of the left-wing interpretation of the 14^th Amendment’s “birthright citizenship” clause directly contradicts Vattel’s explanation of natural born citizen.

When the framers wrote Section 1 of Article II into the Constitution, they were well aware of Vattel’s interpretation.  According to Benjamin Franklin, every member of the Constitutional Convention had a copy of The Law of Nations.

Vattel brought to light the concept of allegiance, or loyalty to the sovereign responsible for the protection of its citizenry.  That allegiance does not flow to any other sovereignty while within foreign territory.

By the way, the natural born citizen requirement should have disqualified Obama from the presidency because his father was a Kenyan national, subject of Great Britain, and never a U.S. citizen, but that’s another story.

Found within the Kim Ark decision, is this quote:

“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual . . . “ [4] 

Cecillia Wang, the ACLU Attorney who presented oral arguments against Trump’s case, claimed that the 39^th Congress (1865-1867) specifically carved out foreign diplomats and occupying forces as the only two narrow exceptions, as cited below, to the citizenship clause, as if she, or any “expert” she may have consulted, could possibly be tuned in to the wavelength of 1860s legislators who would have no idea of 21^st century classes of people that may warrant exceptions.

There were no “illegal immigrants” in 1866.  What about temporary sojourners, foreign students, temporary Visas?  The 39^th Congress could not have foreseen every potential exclusion.

Lord Chief Justice Cockburn, in the same year (1869), reviewing the whole matter, said:

“By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.” [5]

Indians not taxed, as written in Section 1 of the Civil Rights Act of 1866, were the only other class of people acknowledged in Kim Ark.  Apparently, Counsel for the plaintiff selectively deleted the other classes of people specifically mentioned by Sen. Trumbull in the Congressional Record, namely “tourists, and temporary residents”, or foreign sojourners, that would certainly include the classification of illegal immigrants.

Wang pointedly stated that Congress intended to structure the language of the 14^th Amendment to prevent any alterations by any future Congress, a clear misrepresentation.

Indeed, Section 5 of the 14^th Amendment addresses the possibility in stating:

“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

Hence the reason for Section 5, which she ignored.

If her claim was valid, how does she explain the limitation of voting rights strictly to males over the age of 21 years, as described in Section 2?  Clearly, the 14^th Amendment has been altered, and it can be altered again to clarify language, though I don’t think it’s necessary.  It just needs to be understood.  The trouble is, leftists have a hard time understanding anything logical.  It’s like nailing Jello to a tree.  

And yet, Kim Ark is the hill they cling to because anti-American leftists need as many foreign nationals, with no allegiance to the United States, to vote for the Democrats who appease them with free stuff, and place them into positions of permanent rule.  Then we’ll see who the real Kings are.      

The Fate of American Political Power is in Limbo

It is noteworthy that SCOTUS was willing to hear the case and it’s widely agreed that the current makeup of the Supreme Court is decidedly conservative, typically a 6-3 majority over liberal Justices.  However, this case is asking the Court to overrule another SCOTUS decision that has been in effect for 128 years and there seems to be a reluctance to override such a long-standing principle, regardless of the logical and prudent necessity to do so.

When it is recognized that an old ruling was unjust, shouldn’t it be corrected rather than allow the injustice to continue just because it has been around for a long time?

Obviously, the 40^th Congress wasn’t thorough enough in drafting the 14^th Amendment, but they did allow for the possibility of altering the Amendment by Section 5.

Clearly, the Supreme Court erred in judgment in Kim Ark, but it’s not the first time they have made a wrong decision and this Court doesn’t have to ignore the error to avoid disparaging the earlier Justices.

This case is extremely important as the future of American governance hangs in the balance.  Everybody knows the motive of the Democrat Party is to establish permanent power by legalizing illegal immigration and building a super-majority voting block.  That’s the plan and they’ll do anything to effect it.

If there is to be any opposition at all to permanent Democrat power, America needs at least one viable alternative voice.  Right now, the only other option is the Republican Party, though I suggest a strong third party would be nice.

It has been reported that in 2006, 45% of Americans polled were in favor of birthright citizenship, and now that has increased to 69%.  That shows you how effective the Propaganda Media Complex has been in brainwashing the ill-informed useful idiots.  Alternatively, 80% of Americans polled favor the Iran war, but Democrats are against that – selective outrage.

But neither SCOTUS, nor any court, is beholden to polls.  Laws are not subject to popular approval.  Judges are supposed to uphold the law and make reasonable and fair decisions.  The only fair decision in Trump v. Barbara is to declare birthright citizenship invalid and reverse Kim Ark.  That is the only way to restore and maintain political balance in America.  It is expected that the Court will deliberate and write their opinions, then declare a decision sometime in June.

Comments welcomed.

FOOTNOTES

[1] Congressional Globe, 39^th Congress ; 1^st Session 572 ; February 1, 1866

https://www.congress.gov/congressional-globe/page-headings/39th-congress/n-a/50088

[2] Constitution Annotated ; 14^th Amendment text

U.S. Constitution – Fourteenth Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress

[3] Justia U.S. Supreme Court ; United States v. Wong Kim Ark, 169 U.S. 649 (1898) ; Decided March 28, 1898

United States v. Wong Kim Ark | 169 U.S. 649 (1898) | Justia U.S. Supreme Court Center

[4] ibid, ; Page 169 U.S. 655

Excerpt from a previous article I wrote on Natural Born Citizen:

William Blackstone, the famed English jurist, who wrote in “Commentaries on the Law of England, 1765, [a] The first and most obvious division of the people is into aliens and natural-born subjects.

Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king;

and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.

The full article is a good read and gives thoughtful insight on the subject, but for the sake of brevity, I will feature the following key points:

  Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local;

the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth.

  For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another,

put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other;

and cannot be devested without the concurrent act of that prince to whom it was first due. Indeed the natural-born subject of one prince, to whom he owes allegiance,

may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters;

and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince.

  Every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once.

  To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth

in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England:

  But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects,

are now natural-born subjects themselves, to all intents and purposes, without any exception;

These points are important in that they tie one’s allegiance/loyalty to the King/nation within which he was “naturally” born, AND his loyalty travels with him wherever he may go.

It is very difficult to abandon one’s loyalty to his King/nation.

It was recognized that the King’s ambassadors living abroad would raise families and to clarify any misconceptions, it was determined that all children born abroad would be classified as

“natural born citizens” provided BOTH parents were subjects of the King at the time of birth.

Then, it was later refined to require only the FATHER had to be “natural born” for the child born abroad to be a “natural born subject”.

From this we can classify a child born of parents from differing nations, would be a “natural born” subject/citizen of the nation from which his FATHER was a “natural born” subject/citizen.

[a] Blackstone, William. Commentaries on the Law of England, Vol. 1, p. 354 (Oxford, The Clarendon Press 1765)

[5] ibid, ; Page 169 U.S. 657