Update January 26, 2026 — Antifa and Islam, and Democratic politicians, have declared WAR on Trump’s federal officers. They are blocking arrest and deportation of illegal aliens, while Somali fraud soon to reach the TRILLIONS of DOLLARS is proceeding.

James Chiun-Yue Ho, immigrant, and now a judge. I first became aware of Ho reading ‘The Heritage Guide to the Constitution,’ his contributed article on Article II’s natural born citizen clause. (c) 2005, The Heritage Foundation, Presidential Eligibility, Article II Section 1 Clause 5, page 189-191

And I quote from Ho’s article, “Under the longstanding English common law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizen from birth. Thus, those born within the United States are “natural born citizens” and eligible to be President [sic]. Much less certain , however, is whether children born abroad of United States citizens are “natural born citizens” eligible to serve as President.”

Ho continues, recognizing the statutory language in the First Uniform Naturalization Act declaring children of citizens born overseas are ‘natural born citizens,’ but rejecting it as ‘parliamentary rule’ instead it actually being a constitutional Article I act of congress. He brushes aside the jus sanguinis standard in the Act, preferring instead the jus soli principle introduced by the Wong Kim Ark case (1898) that was in direct conflict with existing treaty, and longstanding constitutional and statutory law.

In fact, a 2008 joint committee of the Senate investigated the birth conditions of John McCain, in response to challenges to his Article II eligibility. Here is what that joint committee concluded:

Whereas previous presidential candidates were born outside of the United States of America and were understood to be eligible to be President; and

Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be it

That John Sidney McCain, III, is a natural born Citizen under Article II, Section 1, of the Constitution of the United States.

One minor point is that McCain was born in a hospital, in the historic city of Colon, so not “on an American military base,” but in the Panama Canal Zone.

I have studied and written about three dozen blogs on birthright citizenship at birth. One, targeting Ted Cruz’s particulars of birth and post nati ‘citizenship at birth’ was published by WND.

Here is an excerpt from a book, very thorough in its analysis of James C. Ho’s error in jurisprudence. This is particularly vital considering Ho is a 5^th Circuit judge appointed by Trump, who recently signed an Executive Order barring birthright citizenship. 

And I must say again that ‘domicile’ is no legal basis, whether legal or illegal the intent to live permanently in the United States, for children born to gain citizenship other than that of the foreign father. The Wong Kim Ark holding merely used the term ‘domiciled’ to distinguish the Wong Kim Ark family from military and diplomatic personnel. But merely domiciled in residency cannot be applied to lawful residents, when illegal aliens flooding into the United States are now understood to be an ‘enemy invasion.’ Both are merely in residence, still subject to their home country of origin. They are subject to that nation’s taxes and military requirements, the latter not applying to them while residing, domiciled, in the United States.

Proof? The Chinese parents of Wong Kim Ark resided in the United States for an extended time, enough time to give birth to a son and return with him to China when he was 14-years old. That is only a temporary condition of ‘domicile,’ in lawful residency but with the intention to return to their homeland.

Please visit this URL for the complete American Mind article: https://americanmind.org/salvo/judge-ho-original-intent-and-the-citizenship-clause

Edward J. Erler is Professor of Political Science emeritus at CSU San Bernardino. Previously a Distinguished Visiting Professor at Hillsdale College, he is a senior fellow of The Claremont Institute and a member of the Board of Directors. His latest book, Prophetic Statesmanship, can be purchased here.

Jus soli was not part of the Founders’ social compact understanding of citizenship.

Editors’ Note

The following is an excerpt from a new edition of The United States in Crisis: Citizenship, Immigration, and the Nation State (Encounter Books), which will be published on June 10, 2025.

“Judge Ho, however, argues that the holding in Wong Kim Ark is correct—that the Citizenship Clause of the 14th Amendment rests on the English common law, despite the fact that the principal architects of the Citizenship Clause clearly argued that it did not. It would be difficult, then, to argue that Judge Ho was an original intent jurisprude on the issue of citizenship.

Judge Ho refuses to recognize the framers’ references to “allegiance” in connection with the jurisdiction clause, criticizing those who claim that the Citizenship Clause protects only the children of persons who owe complete allegiance to the U.S.—namely, United States citizens. To support this contention, proponents cite stray references to “allegiance” by Senator Trumbull (a presumed authority in light of his Judiciary Committee chairmanship) and others, as well as the text of the 1866 Civil Rights Act.

Judge Ho helpfully continues: “But the text of the Citizenship Clause requires ‘jurisdiction,’ not ‘allegiance.’ Nor did Congress propose that ‘all persons born to U.S. citizens are citizens of the United States.’” There are many misleading and inaccurate statements packed into this short quotation. The characterization of Senator Trumbull as “a presumed authority” because of his position as chairman of the Senate Judiciary Committee and as author of the Civil Rights Act of 1866 is curious, especially since this was the act, as we have mentioned ad nauseam, that formed the basis for the Citizenship Clause.

Furthermore, it is simply false to say that the Civil Rights Act of 1866 reserved birthright citizenship only for the children of United States citizens; in fact, it included everyone “not subject to any foreign power” and “Indians not taxed.” Trumbull himself used the phrase “subject to our jurisdiction” as meaning “owing allegiance solely to the United States” in the Citizenship Clause debate. We have already discussed at length why he chose not to use “allegiance” in the text of the Civil Rights Act. It was a deliberate exclusion of a common law term that would have given birthright citizenship to those who owed allegiance to foreign countries—that is, aliens. It is incredible that Judge Ho either does not know this part of the Civil Rights Act debate or does not recognize the significance of Senator Howard’s statement that the Citizenship Clause of the 14th Amendment was intended to incorporate the Civil Rights Act.

Judge Ho follows closely Justice Gray’s one foray into legislative history and succeeds only in following him through the gates of error. Justice Gray had emphasized the importance of construing the language of the 14th Amendment itself, arguing against the use of congressional debates to illuminate the meaning of the amendment’s language. The reason, I say again, was abundantly clear: none of the principal proponents ever made an argument that the Citizenship Clause was grounded in the common law. Congressional debates would be no help—and in fact, would be a detriment—in any attempt to support an argument that the language of the 14th Amendment was deliberately founded on the common law. And this was not the only (or even the most egregious) slight of hand engaged in by the two jurisprudes we are examining.

The question about Chinese and Gypsies immediately followed the debate about whether Indians fell within the jurisdiction of the United States. It was argued, we recall, by Senators Howard and Trumbull, on May 30, 1866, that Indians owed allegiance to their tribes and, therefore, were not subject to the complete jurisdiction of the United States, and, consequently, not birthright citizens. Even before this crucial debate, but on the same day, Senator Edgar Cowan, Republican of Pennsylvania, was the first to bring up the issue, asking “is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they? His principal concern seems to have been that Pennsylvania would not be able to restrict the civil or political rights of those who, like Gypsies, “acknowledge no allegiance, either to the State or to the General Government.” In a further query, Cowan asked,

[I]s it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to immigrated out of house and home by Chinese…. They are in possession of the country of California, and if another people of a different race, of different religion, of different manners, of different traditions, different tastes and sympathies are to come there and have the free right to locate there and settle among them, and if they have an opportunity of pouring in such an immigration as in a short time will double or treble the population of California, I ask, are the people of California powerless to protect themselves?”