TOO MUCH THOUGHT—NOT ENOUGH WISDOM (Justice Thomas the exception)

Syllabus: If you manage to read to the end, you’ll discover that President Trump’s Executive Order excluding illegal aliens from birthright citizenship was lawful and completely constitutional. Now, the ball is in congress’s court. Justice Thomas simplified over a century of confusion declaring that, indeed, the 1866 Civil Rights Act was the key to interpreting the 14th Amendment. In addition, I suggest that illegal aliens are ‘invaders,’ committing a crime crossing the border in order to dilute or undermine U.S. sovereignty.

The U.S. Supreme Court accomplished nothing in the Trump vs Barbara [henceforth cited as Barbara] case except to preserve the ‘national consensus’ that the constitution guarantees that all children born on U.S. soil are U.S. citizen. Of course, children of ‘invaders’ are not citizens,[1] and any person entering our country illegally and in violation of immigration procedure, whether pursuing a selfish or a political agenda, i.e., dilution of U.S. sovereignty, should be defined as an invader as opposed to a visitor–and the Executive Order President Trump issued specifically denied birthright citizenship to illegal aliens.[2]

If migrants cross the border without permission, are they invaders per se? During the Biden administration’s opening of the border, the ‘caravans’ of people certainly resembled an invasion. When undesired animals, plants or harmful insects enter the United States, we call them ‘invasive species.’ This essential element of President Trump’s Executive Order was not discussed in the Barbara decision except declaring illegal crossing of the border NOT invasive.

While some are asking for congress for new legislation or amending the constitution, neither is necessary. In 2008, the Article II presidential eligibility of Panama-born John McCain was resolved by a bipartisan session in the senate, correctly applying the constitution’s term ‘natural born citizen’ to a child born in a foreign country to U.S. citizen parents. That was Senate Report 511.

Recently, a congressman suggested that congress exercise its Article I plenary power and jurisdiction over naturalization law in order to ‘clarify’ what congress intended when it wrote the 1866 Civil Rights Act and adopted the 14^th Amendment.[3] https://www.msn.com/en-us/news/politics/house-republican-introduces-birthright-citizenship-clarification-act-to-codify-trump-executive-order/ar-AA27Bggz?ocid=msedgntp&pc=U531&cvid=6a51233355f94db6beacf1c31135473e&ei=59

I am confident a commission studying the issue, as did the bipartisan senate session for McCain, will come to the right conclusion. After all, it is for this reason the framers gave congress plenary power over immigration and naturalization law; no part or share to the judiciary. Even with the initial confusion of several congressmen over the 1866 Act and subsequent language of the 1868 Amendment, discussion of the matter with the actual authors made the intent and meaning clear—‘birthright citizenship’ was not just some broad and egalitarian gift (as Justice Jackson describes it in her concurring opinion[4])

Chief Justice Roberts, in essence, refused to let go of the mass confusion over the 14^th Amendment, which he concluded embeds ‘native born’ citizenship at birth into the constitution. 

“The congressional debates over the Civil Rights Act of 1866 and the Fourteenth Amendment confirm the common law rule. Statements embracing the common law rule were far more frequent and explicit than ambiguous references to “temporary sojourners.” See, e.g., Cong. Globe, 39th Cong., 1st Sess., 1117.” Slip Opinion of Chief Justice Roberts, pg 4 [Cf Emmerich de Vattel’s ‘Law of Nations’ discussion of feudal ‘jus soli,’ reporting that children of ‘sojourners’ were exempt from jus soli allegiance.]

Yet, even Wong Kim Ark, the 1898 Supreme Court case that created ‘native born’ citizenship for a Chinese laborer admitted it wasn’t part of the constitution or legislated act. Instead, the 1898 court dismissed statute as applied by the Executive Branch and invoked common law of England, and created a Conflict of Law that continues to dilute our national identity and sovereignty.

Yes, in 1866 several legislators asked for clarification, assuming ‘native birth’ was the rule, but the head author of the amendment, and other sponsors, instructed them with clarity; therefore, Roberts’ ‘ambiguity’ of the matter was not supported by the number of legislators who were confused–‘ignorance of the law is not the rule of law’:

The chief author of the 14th Amendment, Sen. John A. Bingham, made it unambiguously clear:

“[E]very human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866)

Here is an example of a confused congressman:

“The ancient and indisputable citizenship rule of the British common law was the jus soli, under which a person’s nationality is determined by the place of his birth…. It is clear, of course, that the American colonies and the nation they ultimately established had accepted the precepts of the English common law, as part of the heritage from the mother country.” Cong. Globe, 39th Congress, 1st Sess. 1262 (1866) (Congressman Broomall)

Congressman Broomall was wrong. Why? First, even British law from 1351 to 1772 first recognized the rightful inheritance of legiance from the father, regardless of place of birth. This was an essential law during England’s colonial empire. Second, most states barred reliance on English ‘common law’ unless specifically codified. And, thirdly; the U.S. Constitution specified plenary power over Uniform Naturalization law to be the jurisdiction of Congress.

And here is a quote as cited in two other Supreme Court cases:

Cong Globe 39th Congress 2768, 2769 Pres. pro tem Senator Wade (OH)”In the first section of the proposition of the committee, the word “citizen” is used. That is a term about which there has been a good deal of uncertainty in our Government. The courts have stumbled on the subject, and even here, at this session, that question has been up and it is still regarded by some as doubtful. I regard it as settled by the civil rights bill, and, indeed, in my judgment, it was settled before [see the 1790 Act et seq 1855]. . . The Senator from Maine suggests to me, in an undertone, that persons may be born in the United States and yet not be citizens of the United States.”* Elk v. Wilkins, 112 U.S. 94 (1884)[5]

This was 1866, the matter discussed being the Civil Rights Act. But the preamble to the 1866 Act was edited from ‘not subject to any foreign power’ to ‘under the jurisdiction thereof’ in the 14^th Amendment, without any change in intent. (See fn 5)

Foreign Law Instructive, but Not Followed

We remember this explanation best from Justice Ginsburg’s defense for relying on foreign law. The jurisprudence of foreign law was argued between Justice Kennedy and Scalia in Roper vs Simmons, 125 S. Ct. 1183 (2005). But the reliance on case law from foreign jurisdictions, laws expired and superseded, and opinions from dead jurists or scholars from one university or another (Roberts cited James Kent, a Columbia University law professor, sixteen times) should not be the basis for interpreting our own constitution and laws.

One might suggest, in hyperbole, a judge deciding a case by citing Leviticus or Deuteronomy. Imagine the outrage; but no outrage forthcoming from relying on foreign, ancient law, or dead college professors.

However, current statutes, in their latest iterations, and decisions from the most recent courts of proper jurisdiction relying on those legislated acts are the most reliable basis for United States jurisprudence. We have followed law as stare decisis, and ‘secondary sources’ being inferior and unreliable. And we have the original sources of law, the legislative history and the intent in the language and times of the original writers. 

Instead, all Chief Justice Roberts did in Barbara was, “look over the heads of the crowd and pick out its friends.” Cf. Conroy v. Aniskoff, 507 U. S. 511, 519 (1993)

In fact, the Wong Kim Ark case, much cited in Barbara, would not have been tried at all if existing naturalization statute, unchanged for over 108-years, was relied upon that determined Wong was a Chinese citizen, his subjection to the Chinese Emperor, and that ‘native birth’ was not a statutory element for granting citizenship. Wong had no case under existing law, and the interpretation and citing of that law by the Executive Branch was correct and outside the court’s jurisdiction.

To illustrate, the yellow highlighted text from Chief Justice Roberts’ syllabus in Barbara shows his opinion was based, almost entirely (65%), by foreign, antiquated law and jurists.

As much as our esteemed, robed jurists are infatuated with English common law, the first states of our newly founded union held the common law in abeyance, requiring a ‘filtering’ and close examination by state legislators before codifying it as followed law:

Pennsylvania

Pa. 1897.  The omission of a statute from the list of English statutes reported by the judges of the Supreme Court as in force in Pennsylvania, 3 Binn. 595, raises a strong presumption that such statute is not in force there.   Gardner v. Keihl, 37 A. 829, 182 Pa. 194.

2010 Code of Laws of South Carolina:

SECTION 14-1-50. Common law of England shall continue in effect. [SC ST SEC 14-1-50]  All, and every part, of the common law of England, where it is not altered by the Code or inconsistent with the Constitution or laws of this State, is hereby continued in full force and effect in the same manner as before the adoption of this section.

How about Virginia?

The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly. Code 1919, §2, §1-10; 2005, c.839 § 1-201. Acts of Parliament. The right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, shall still be saved, insofar as the same are consistent with the Bill Of Rights and Constitution of this Commonwealth and the Acts of Assembly. Code 1919, §3, §1-11; 2005, c.839

Conclusion:  As deeply into the ‘weeds’ we could go, as some justices did in the Barbara case, the case was quite clear. As Justice Thomas explained (fn 5 supra) a child born in the United State to foreign parents was the nationality of the parent and ‘subject’ to that foreign power, a visitor, and not domiciled. In addition, illegal aliens crossing the border to bear U.S. citizen ‘anchor’ babies should be considered ‘invaders’ entering with the act of violating U.S. statutes and sovereignty, committing a crime. This inclusion of illegal aliens and ‘visitors’ producing ‘anchor’ babies should be in the 14^th Amendment’s and 8 USC 1401’s exclusions from the ‘citizenship clause.’

Sidebar

Origins of Surnames:  In feudal times, people were known by a single name. As populations grew, surnames became necessary to differentiate individuals with the same first name.

The use of surnames became more common in Europe during the Middle Ages. By the 13th century, fixed hereditary surnames were established in England.

In feudal times the child was identified more by the village he was born in, the ‘jus soli’ if you will. His occupation under the ‘lord’ was used rather than a family name. As populations grew and the Middle Class grew, and travel became more accessible, the surname became necessary to identify the person through his father and lineage, the law of jus sanguinis.

Inheritance of property to the legitimate heir was by blood, and so was nationality and allegiance. Automatic and permanent allegiance from ‘place of birth’ was ending and statute followed suit, considerations made for foreign travel outside the realm, and exemptions for children of ‘sojourners.’

This explains the slow transition from jus soli in the British common law as followed by the British colonies in America to jus sanguinis starting in the First Uniform Naturalization Act in 1790. And, it also follows a parallel course to the Marxists referring to them as the bourgeoisie.

Were Marxist tendencies by judges in the late 19^th Century carried into their preference for feudal jus soli citizenship mandated by the state, rather than that of blood, the jus sanguinis inheritance from the father?

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[1] “But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.” Wong Kim Ark, 169 U.S. pg 656

[2] On January 20, 2025, President Trump issued Executive Order No. 14160, titled Protecting the Meaning and Value of American Citizenship. The Order provides that children born in the United States of parents who are unlawfully or temporarily present here are not “subject to the jurisdiction” of the United States—and thus do not qualify for citizenship under the Fourteenth Amendment or the Immigration and Nationality Act (INA), which uses the same language. 609 U. S. ___ (2026) pg 1

[3] “Congress could—consistent with the Fourteenth Amendment—amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so.” 660 U.S.__ Kavanaugh’s Concurrence in Part pg 1

[4] “JUSTICE THOMAS now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to “freed slaves such as Dred Scott . . . (“no other homeland) . . . It is for this reason, he says, that “children who were born in the United States but [to parents] not domiciled here” are not entitled to claim birthright citizenship.” Author’s Note: The 14^th Amendment was not racial per se; it was the stateless condition of slavery that necessitated the 1866 Act and 1868 Amendment. Conversely, if a slave’s father had citizenship, the citizenship clause would not be required as written.

[5] “The Civil Rights Act guaranteed citizenship to per sons who were both “born in the United States” and, as relevant here, “not subject to any foreign power.” Act of Apr. 9, 1866, 14 Stat. 27. The phrase “not subject to any foreign power” excluded from citizenship children of foreign tempo rary visitors, who were subject to the power of their home nation. See, e.g., The Pizarro, 2 Wheat. 227, 246 (1817); The Venus, 8 Cranch, at 278–279. The Citizenship Clause, which the same Congress passed shortly after the Civil Rights Act, was understood to have the same meaning. It guaranteed citizenship to persons who were both “born . . . in the United States” and “subject to the jurisdiction thereof.” Amdt. 14, §1. A person was subject to the jurisdiction of the govern ment of his domicile. “Domicil” was “the foundation of ju risdiction over persons.” 1 T. Twiss, The Law of Nations 239 (1861) (Twiss). The government of a person’s domicile had broad power over that person, including with respect to his personal affairs, his conduct abroad, his personal taxes, and the mutual duties of protection and allegiance. So, as the Senator who introduced the Citizenship Clause explained, “the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction . . . the same jurisdiction in extent and quality as applies to every citizen of the United States now.” Cong. Globe, 39th Cong., 1st Sess., 2895 (1866) (statement of Sen. Howard). After all, Congress “would have no right to make citizens” of “persons temporarily resident.” Id., at 572 (statement of Sen. Trumbull). The Citizenship Clause was consistently interpreted not to apply to the children of foreign temporary visitors, who were by definition not domiciled in the United States.” 609 U.S. ___ Thomas, J. Dissenting pg 3