By Michael Taylor | ThaWilsonBlock Magazine
The question of who qualifies for American citizenship is not just a moral or political debate — it is a constitutional one. For over a century, courts and executive agencies have applied birthright citizenship in a way that defies the intent of the 14th Amendment and undermines Congress’s constitutional authority. This practice, particularly as it applies to children born to undocumented immigrants, raises a serious challenge:
> Can individuals derive irrevocable constitutional benefits from ongoing unlawful presence? And if not, why has the judiciary allowed it?
This question strikes at the heart of the rule of law. The answer lies in decades of misinterpretation, judicial drift, and administrative neglect. The issue is not emotional. It is structural. And it belongs squarely with Congress, not the courts or the White House.
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🔎 The 14th Amendment’s Soft Spot: Jurisdiction
The 14th Amendment states:
> “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”
The phrase “subject to the jurisdiction thereof” is not redundant — it is restrictive. It was included by the framers to limit the scope of automatic citizenship. At the time of its ratification in 1868, the clause was understood to exclude:
Children of foreign diplomats
Children of enemy combatants
Native American tribes (before their full incorporation)
And by extension, individuals not lawfully present or subject to full U.S. legal authority
Undocumented immigrants do not meet this test. Their presence violates federal law, and while they may be subject to arrest and deportation, that does not equate to being fully under U.S. jurisdiction in the constitutional sense. Their allegiance is not legal. Their presence is not sanctioned. Therefore, their children should not automatically receive constitutional citizenship.
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⚖️ Judicial Overreach: Wong Kim Ark Was Never Meant to Cover the Illegally Present
The case most often cited in favor of birthright citizenship is United States v. Wong Kim Ark (1898), in which the Supreme Court ruled that a child born in the U.S. to lawfully residing Chinese immigrants was a U.S. citizen under the 14th Amendment.
But that case dealt with legal residents, not illegal entrants. Courts have since stretched the holding of Wong Kim Ark far beyond its factual boundaries — effectively creating a judicially manufactured pathway to citizenship for children of persons actively violating U.S. law. That is not constitutional interpretation. That is judicial activism.
The result? A class of citizens whose status flows not from law, but from legally unauthorized presence, undermining the rule of law itself.
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🏛️ Congress Must Reassert Its Constitutional Role
The U.S. Constitution is clear in Article I, Section 8, Clause 4:
> “The Congress shall have Power… To establish a uniform Rule of Naturalization.”
This means Congress — not the courts, and not the president — has exclusive authority over who becomes a citizen through naturalization. And while the 14th Amendment guarantees citizenship to those born and subject to the jurisdiction of the United States, Congress must clarify what that phrase legally means in the context of unlawful immigration.
It is not the role of the judiciary to legislate who gets citizenship through interpretive drift. Nor should the executive grant or tolerate constitutional status where Congress has not spoken. Yet both have done so, creating a dangerous legal gray zone where citizenship is conferred through administrative inaction or court-made policy.
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🔄 The Role of the Executive: Enforce the Law, Not Rewrite It
The executive branch’s job is to enforce immigration law, not reinterpret the Constitution or sidestep Congress. However, it does have discretion over how to implement immigration policy once Congress has spoken.
> With proper legislative guidance, the executive can and should deploy adjacent, lawful pathways to citizenship — such as merit-based systems, humanitarian protections, and temporary protected statuses — to provide meaningful, lawful alternatives for integration.
These pathways must exist alongside robust enforcement, not in place of it. Citizenship must be earned, not backdoored. If the jurisdiction clause is clarified to exclude children of undocumented entrants from automatic citizenship, it will become the executive’s job to manage orderly immigration and citizenship access through congressionally sanctioned channels.
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🧠 The Rule of Law Is Not Optional
In every other area of law, unlawful conduct cannot produce legally binding rewards. A contract signed under fraud is void. A conviction gained through illegal search is overturned. A thief doesn’t get to keep what they stole. These are basic legal principles.
Yet in the realm of birthright citizenship, we’ve created an exception — one that violates both the letter and spirit of the Constitution. Children born to those in violation of federal law are being granted constitutional status that can never be undone, all while Congress is bypassed and the executive defers.
That is not enforcement. That is abdication.
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🎤 Final Word
The United States must restore clarity and integrity to its citizenship doctrine. The phrase “subject to the jurisdiction thereof” must be properly legislated and enforced as the gatekeeper to birthright citizenship — not a blank check for geographic presence.
This is not about cruelty. It’s about constitutionality. It's about Congress reclaiming its rightful power, and the executive doing its job with integrity and precision. Citizenship is too sacred to be accidental — and too powerful to be lawless.
The future of constitutional order depends on it.
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