{"id":8498,"date":"2026-03-31T07:07:46","date_gmt":"2026-03-31T11:07:46","guid":{"rendered":"https:\/\/dahlman.online\/?p=8498"},"modified":"2026-03-31T07:07:48","modified_gmt":"2026-03-31T11:07:48","slug":"our-birthright","status":"publish","type":"post","link":"https:\/\/dahlman.online\/index.php\/2026\/03\/31\/our-birthright\/","title":{"rendered":"Our Birthright"},"content":{"rendered":"\n

I\u2019ve been writing \u201cpolitical\u201d essays for over nine years.  And, as a former government and history teacher, I\u2019ve done a lot of thinking about the Fourteenth Amendment to the Constitution.  In fact, I\u2019ve written four essays directly on the point of who is an American citizen.  So what else is there to say about the matter?  Here\u2019s my thoughts.<\/em><\/p>\n\n\n\n

Born in the USA<\/h2>\n\n\n\n

Tomorrow, the United States Supreme Court will hear the case about Donald Trump\u2019s executive order banning \u201cbirthright citizenship\u201d (Constitution Center<\/a>).   The question is simple: should everyone born in the United States (or under the \u201cflag\u201d of the United States) be a \u201cborn\u201d US citizen?  The answer to that is in the “black letter” wording of the Fourteenth Amendment.  <\/p>\n\n\n\n

14th<\/sup> Amendment, Article 1, Section 1<\/strong>:<\/p>\n\n\n\n

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.<\/strong><\/p>\n\n\n\n

That seems straight forward.  But the Trump Administration argues that this section isn\u2019t \u201cclear\u201d at all.  In fact, they will try to convince the Court that, persons who are undocumented (the folks Trump loves to call \u201ccriminal-illegal\u201d kind of like being “addled- demented”<\/em>) and have a child born in the United States, are, NOT subject \u201cto the jurisdiction thereof\u201d. So their child, “Born in the USA” is not a citizen.<\/p>\n\n\n\n

There\u2019s a clear, common sense argument about that.\u00a0\u00a0While they may be undocumented, those folks are definitely \u201cunder the jurisdiction\u201d.\u00a0\u00a0If they commit a crime, they are dragged into US Courts, punished under US law, and imprisoned in US jails.\u00a0\u00a0The MAGA folks know that\u2019s true; they use it in their political ads all the time. \u00a0\u00a0Part of their \u201cscare campaign\u201d about the undocumented is the litany of rapes and murders committed by undocumented people. (Statistics show that violent crimes by the undocumented are far less per capita than by \u201cregular\u201d citizens\u201d \u2013\u00a0House.gov<\/a><\/em>).<\/p>\n\n\n\n

John Elk<\/h2>\n\n\n\n

Another Trump argument hangs on a slim thread of documentation.\u00a0\u00a0They make reference to the\u00a0 1884\u00a0Supreme Court decision, Elk v Wilkins <\/em>( 112 U.S. 94<\/a>).\u00a0\u00a0Elk was a Native American, originally a member of the Winnebago Tribe of Nebraska.\u00a0\u00a0He \u201cdisassociated\u201d himself from the tribe, and claimed that, since he was born in territory now owned by the United States, he had birthright citizenship.\u00a0\u00a0The Court ruled that since he was born a Winnebago, at the time recognized as a \u201cforeign\u201d nation, he did not have a birth right to US citizenship.<\/p>\n\n\n\n

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We could go into the horrible history of the United States government dealing with Native Americans. The US Government treated Native Tribes as foreign nations. They made treaties with them (almost all subsequently broken) and then waged war against them.<\/p>\n\n\n\n

That includes in the 1880\u2019s.\u00a0\u00a0The United States at the time was in open warfare in the Apache Wars, the California Indian War,\u00a0\u00a0and the Great Sioux War that then lead to the Ghost Dance Movement.\u00a0\u00a0In fact, the massacre of the Lakota tribe members at Wounded Knee didn\u2019t occur until December of 1890, six years after the Elk decision.<\/p>\n<\/div><\/div>\n\n\n\n

So when John Elk appealed to the US Supreme Court, the government of the United States was at war with native tribes all over the West.\u00a0\u00a0Part of the legal \u201cstructure\u201d that justified those wars of conquest was to view the tribes as \u201cforeigners\u201d in their own land. (That land was soon to be US Government land and sold to the highest bidder).\u00a0\u00a0\u00a0In fact, it took until 1924 and the Snyder Act<\/em> for all Native Americans to be considered citizens (NARF<\/a>).<\/p>\n\n\n\n

Waging War<\/h2>\n\n\n\n

The Trump Administration is appealing to this sordid history. They claim that if John Elk wasn\u2019t considered a citizen, then a child born of undocumented migrants should not considered a citizen as well.\u00a0 And, the Supreme Court has made poor citizenship decisions in the past.\u00a0\u00a0The most obvious example is the Dred Scott Decision<\/em> of 1857, when they ruled that black men, even if they were freed, were not eligible for citizenship.\u00a0\u00a0\u00a0The first section of the Fourteenth Amendment was written to directly overrule that decision.\u00a0<\/p>\n\n\n\n

Undocumented migrants are not \u201cwaging war\u201d against the United States.\u00a0\u00a0And they do not have \u201cterritory\u201d within the boundaries of the US, or areas not \u201csubject to the jurisdiction\u201d.\u00a0\u00a0And for those just waiting to yell “Sanctuary Cities”; the cities that choose not to enforce immigration policies with their own police, remain under Federal jurisdiction. Sanctuary cities simply determine that immigration enforcement isn’t their responsibility. That’s just like the Secret Service enforcing laws against counterfeiting, not the local police. <\/em><\/p>\n\n\n\n

Gilded Age <\/h2>\n\n\n\n

For the Court to accept the Trump Administration arguments and remove \u201cbirthright citizenship\u201d, would require a vast legislative-like overreach.\u00a0\u00a0That\u2019s especially true for a Court majority that prides itself on following the \u201coriginal intent\u201d of the authors of the Constitution, on in this case, of the 14th<\/sup> Amendment.\u00a0\u00a0The authors were men of their time.\u00a0\u00a0They included who they wanted, migrants among them, and they excluded who they didn\u2019t want, including many Native Americans. The Supreme Court itself said so in a later case, United States v Wong Kim Ark<\/em><\/a>, in 1898. In that case – on point – a person born in the United States of non-citizen Chinese parents, was held to be a citizen of the United States.<\/p>\n\n\n\n

There\u2019s no reason for the Court to compound the racism of the 1880\u2019s.\u00a0\u00a0And while the Trump Administration might find common cause with the policies of the Gilded Age, let\u2019s hope the Courts, and our Nation, moves beyond that. But, in this “Age of Trump”, anything is possible. You can’t even depend on the Supreme Court to follow their own precedents. Several of them are “men of their time” – the Gilded Age.<\/p>\n\n\n\n

Other Essays on the Fourteenth<\/h4>\n\n\n\n