Abstract

Excerpted From: Christian Ketter, Textualism, the Fourteenth Amendment's Citizenship Clause, “Subject to the Jurisdiction Thereof,” and Whether Article III's Treason Clause Could Be the Answer, Nevada Law Journal 825 (Spring 2026) (538 Footnotes) (Full Document)

Ratified in 1868, the Reconstruction Era’s Fourteenth Amendment begins: “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.” But as noted by constitutional scholar Akhil Reed Amar--a strong advocate for constitutional interpretations of birthright citizenship, “[n]owhere does this Amendment itemize these unbridgeable entitlements or specify where they are to be discovered.” In 1898, in United States v. Wong Kim Ark , the U.S. Supreme Court looked critically at the words of the Citizenship Clause, acknowledging that “[t]he constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by [its] affirmative declaration ....” A 2025 Executive Order from President Donald J. Trump will serve as a catalyst for conclusive answers to once again come from the Supreme Court.

On the first day of President Trump’s second term, his administration issued an Executive Order, entitled “Protecting the Meaning and Value of American Citizenship.” The Order indicated that the Executive Branch would not recognize citizenship in two circumstances: first, “when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth,” or second, “when that person’s mother’s presence in the United States [at the time of said person’s birth] was lawful but temporary ... and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

The Executive Branch has thus, sparked a nationwide constitutional debate about five words in the Fourteenth Amendment’s citizenship clause: “subject to the jurisdiction thereof.” Even before President Trump’s second inauguration, this matter was already expected to ascend to the Supreme Court. Whatever meaning it is said to have will turn upon the text of the Constitution itself.

This issue was not new for President Trump. Seven years earlier--in 2018--he stated his intention to issue an executive order to end immediate birthright citizenship for babies who are born on U.S. soil to noncitizens and unauthorized immigrants. In a 2018 exclusive interview, President Trump stated, “It was always told to me that you needed a constitutional amendment. Guess what? You don’t ... You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.” Trump reasoned, “[w]e’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits ... [that]’s ridiculous. And it has to end.” It is noted globally, however, that as of 2025--thirty-six countries reportedly offered unrestricted birthright citizenship, and forty-five additional countries offered birthright citizenship subject to certain restrictions. Still, for example, in 1981, the United Kingdom had abandoned its territorial birthright citizenship.

Back in 2018, President Trump announced that there were already concepts of a plan in process to be accomplished via executive order. In one of the several lawsuits currently litigating the 2025 Executive Order in federal courts, the plaintiffs noted that the Order was “designed to stop what President Trump calls 'Birth Tourism,”’ an element of sophisticated operations that, according to CBS News, involves individuals financially gaining from conspiring to arrange for “expectant mothers travel to the U.S. to give birth as a way of gaining American citizenship for their children.”

This Article analyzes the Executive Order and America’s unique body of law surrounding the underlying concepts. Section I of the Article break down the aspects of the Order, Congress’ powers surrounding immigration and its laws on the subject, the Supreme Court precedent, and evaluates the ongoing litigation across the United States. Section II evaluates aspects of how the Supreme Court may approach the questions raised by the Order. At its crux, this Section offers the Constitution’s treason clause as a means of resolving longstanding atextual, court-created exceptions to the concept of Birthright Citizenship--the majority of which have derived from English common law and have otherwise been read into the Constitution.

[ . . . ]

The Trump Administration’s purpose in specifically citing Chief Justice Roger B. Taney’s discredited Dred Scott opinion in the Executive Order can only be speculated, but its citation is undoubtedly purposeful. Dred Scott is a case of which Chief Justice Roberts is poignantly mindful. Roberts has said candidly that when one assumes the role of Chief Justice, “[y]ou wonder if you’re going to be John Marshall or you’re going to be Roger Taney,”’ and, added Roberts, “[t]he answer is, of course, you are certainly not going to be John Marshall. But you want to avoid the danger of being Roger Taney.”’ In a new divisive era--albeit devoid of slavery but with immediate technological mass-publication--the pressure in some respects is visibly greater upon Roberts than his predecessors Taney or Marshall.

Professor Amar has asserted his confidence that the Supreme Court will rule that the Fourteenth Amendment contains a guarantee of birthright citizenship. But specifically how the Court might shape more specific aspects of a case this early on is a matter of sheer speculation as to: what the issues of law on review would be, what the Court would say that law is, and whether the Court would even exercise its prerogative to say anything at all depending on a ruling actually addressing the merits before the Court of Appeals. But with a case of this magnitude in Executive scope and constitutional meaning, it would be anticipated that the Chief Justice may exercise his powers of assigning authorship to himself. Chief Justice Roberts, as a judicial “umpire,” has consistently assigned himself critical landmark cases. The makings of a landmark exist in a case settling the meaning of a phrase unscrutinized since 1898. Roberts will seek to achieve a unanimous decision and may self-assign it.

With all eyes on the Judiciary, every tool is at the Court’s pragmatic disposal. The Treason Clause is a textual solution for succinct subjecture analysis, which can bolster both predictability and public confidence. And just as Chief Justice Marshall breathed life into the Constitution’s Necessary and Proper Clause in M’Culloch v. Maryland ironically bringing elasticity to certain powers while limiting another sentence’s scope), the Roberts Court can similarly read the Citizenship Clause’s through the lens of the Treason Clause. After all, “we must never forget that it is a constitution we are expounding.”

Christian E. Ketter is an Adjunct Professor of Law at University of Illinois Chicago School of Law and Northern Illinois University School of Law, and he is a member of the American Association of University Professors.