It's in the Constitution (14th Amendment) I would say extremely unlikely.
I don’t think Griswold is wrong per se. Rather, I think it’s based on a libertarian view of the Constitution that almost none of Griswold’s proponents actually support.
"All persons born or naturalized in the United States, AND (capitalized for emphasis) subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
If they can get the SCOTUS to reconsider United States v. Wong Kim Ark from 1898 it could go either way - the court is conservative and public sentiment has shifted.
It's pretty easy to make a compelling argument.
The 14th Amendment was intended to address the citizenship status of freed slaves and their descendants post-Civil War. It was not meant to apply to the children of immigrants, particularly those who were not legally present or had not pledged allegiance to the U.S.
A stricter interpretation of "subject to the jurisdiction." means it should require complete, exclusive allegiance to the U.S., which might not apply to children of undocumented immigrants due to their parents' legal status or nationality.
You could also argue that the current interpretation dilutes national sovereignty by automatically bestowing citizenship without a clear reciprocal pledge of allegiance from the parents.
The fact that children of diplomats do not automatically gain citizenship due to not being "subject to the jurisdiction" in the fullest sense could be expanded to include children of undocumented immigrants, arguing that these parents, too, are outside full U.S. jurisdiction.
Finally, United States v. Wong Kim Ark was decided under different circumstances. The socio-political context has changed. This could be used to justify revisiting the original interpretation.
Wong Kim Ark doesn’t answer the question, because it doesn’t even try to interpret the term. Instead it assumes that the framers of the 14th amendment meant to incorporate English common law of citizenship. Maybe that’s true, but that’s not what the Court thought the term meant in the Slaughterhouse Cases two decades before that.
Justice Harlan also had a well reasoned dissent in that case, noting that English common law on citizenship arose out of feudalism and wasn’t necessarily an appropriate source on the question.
I think it’s unlikely this will get overturned, but it’s not a frivolous argument.
Regardless, I wouldn’t call an argument supported by clear dicta in one Supreme Court case and a solid dissent in another “frivolous.” But I’d put the odds of the Supreme Court ruling in Trump’s favor substantially below 10%. You lose 100% of the shots you don’t take, though.
"It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court* is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."
* The question in Slaughterhouse cases being on the topic of whether the 14th Amendment automatically subsumed the legislative authority of states in important respects, rather than the eligibility of children of foreign nationals for US citizenship.
If you want some more examples:
Voting, Jury Service, Employment Authorization, and Driver's licenses.
In practice, immigrants aren't conscripted during a draft.
We haven't had a draft since the 1970s. It's unclear how many draftees were immigrants back then (and the legal definitions around immigration have changed in the meantime) but historically conscription of immigrants has been the norm, not the exception.
Voting, Jury Service, Employment Authorization, and Driver's licenses.
These seem like things from which undocumented immigrants are excluded (by law!), not immunized. Why you think this is an argument in favor of your legal theory is beyond me.
My argument is that the phrase "and subject to the jurisdiction thereof" may be interpreted to mean that individuals must be under the complete, allegiance-owing jurisdiction of the United States, and because they may not be for a host of reasons, the SCOTUS may reevaluate US v Wong Kim Ark and reinterpret the 14th amendment.
There's also this 1866 Congressional document discussing the 14th after it was passed detailing "and subject to the jurisdiction thereof". It reads "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the Government of the United States, but it will include every other class of persons." https://x.com/pepesgrandma/status/1057514062899277824/photo/...
There's a very strong case here.
[1] https://calawyers.org/publications/taxation/ca-tax-lawyer-ma...
This would imply that neither jus soli nor jus sanguinis citizenship would be applied to the children of US citizens who hold dual citizenship, that wouldn't fly at all, given that it would leave such folks entirely stateless.
> The socio-political context has changed.
This does not matter to a textualist reading of the constitution, which the majority of members of the current court claim to apply.
> The fact that children of diplomats do not automatically gain citizenship due to not being "subject to the jurisdiction" in the fullest sense could be expanded to include children of undocumented immigrants, arguing that these parents, too, are outside full U.S. jurisdiction.
The counter to this is that undocumented immigrants would be totally outside of the jurisdiction of any US legal enforcement except for deportation. The local police cannot arrest or detain someone who is outside of their jurisdiction. If a parent is outside of the US jurisdiction, they have some equivalent of diplomatic immunity. You can't say "you're under jurisdiction of the US for law enforcement purposes, but not for immigration purposes".
I don't expect this to be upheld. Many tech workers will be affected if it somehow is, though.
https://www.whitehouse.gov/presidential-actions/2025/01/prot...
It is only ambiguous read in a vacuum. Read in the comtext of the US legal tradition in which it was written and the way the prior English common law tradition was incorporated into that tradition, it is...rather unambiguous. (Most notably, its exactly how the Supreme Court had applied the principles of English common law involved in multiple citizenship cases before the 14th Amendment establishing a uniform Constitutional rule for birthright citizenship was drafted and ratified. )
> If they can get the SCOTUS to reconsider United States v. Wong Kim Ark from 1898 it could go either way.
Sure, if they can get the court to ignore the clear meaning of “subject to the jurisdiction thereof” in the context in which it was written, it can go either way. But Wong Kim Ark isn't like Roe and the line of cases descended from it, its not controversial even within the kind of conservative legal tradition that dominates the court.
The Trump Administration could probably get such a case before the Court if it really wanted to, but even this court I can’t see splitting more favorably to overturning the status quo on this point than 8-1 against.
It’s not the Supreme Court’s fault that Jack Smith charged Trump based in part on his instructions to his own DOJ. A smart prosecutor would’ve written an indictment based purely on conduct that was obviously unofficial acts, which the Supreme Court held was not protected.
That the decision is wrong is pretty clear from the Constitution itself: where it intends there to be a Constitutional legal immunity for official acts for Constitutional officers, it explicitly states it (e.g., the speech and debate clause in Article I.) The absence of any such statement for the President and the narrow one provided for members of Congress make it clear that creating a broad Presidential official act immunity ex nihilo for the President is contrary to and an inversion of the Constitutional design, putting a single actor above the law rather than bound by it.
However, presidential immunity did give Obama the ability to launch a drone strike against him in the name of national security. He could basically execute the individual and was protected because of his presidential immunity.
Immunity is implied by the Constitution because of separation of powers, and it's been a long-held policy that the president has immunity so that he can do his duties without fear of criminal or civil prosecution, and this is a perfect example of this.
The only thing SCOTUS did was make it clear that the President does have immunity when conducting official acts. This was something that was long-held policy but never officially declared until last year.
The whole phrase about 'subject to the jurisdiction thereof' refers to the fact that foreign diplomats (and often, their families) are not subject to the jurisdiction of their countries of residence, a concept known as diplomatic immunity. This sometimes leads to people with diplomatic privileges avoiding legal consequences that would otherwise result in fines or custodial sentences, as in this recent case: https://en.wikipedia.org/wiki/Death_of_Harry_Dunn
Regular, not-diplomatic people of foreign origin who are in the US are subject to the jurisdiction of US courts like anyone else. I have never found any legal justification for the opposite view other than the intense desire of the proponent for things to be different. Usually people who want to sweep aside this precedent rely on an 18th century book called The Law of Nations by Swiss legal theorist Emer Vattel, which opts for a concept of de jure (naturalized) citizenship rather than jus soli (of the soil) citizenship as exists here and in some other countries. They argue that it was a very popular book in its day and that Washington, Jefferson, and other founders of the US had certainly read it. when asked why they didn't just write this into the Constitution you usually get a hand-wavey answer about how it was so obvious they didn't see any need (at best) or the person just stops responding or gets mad (at worst).
> 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."
> The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
In all other exceptions to the 14th amendment, either you are dealing with an invading army, or you are dealing with people who have diplomatic immunity, all cases where they are not subject to American Civil law (and law enforcement). So how does the court thread the needle to allow law enforcement to interact with folks who it is claiming are not subject to US jurisdiction?
Wong Kim Ark cited Schooner Exchange, which explained that nations have absolute jurisdiction over persons on their territory. It framed the cases you’re talking about, those having diplomatic immunity, as being a waiver of jurisdiction that was customary under international law.
In any event: Longstanding actual practice has followed the conventional interpretation of "subject to the jurisdiction"; see, e.g., former British prime minister Boris Johnson, who was born in NYC to British citizens and thus had to pay U.S.-citizen taxes until he renounced his citizenship. [1]
Finally, as has also been noted: No sane person would assert with a straight face that a suspected thief, murderer, or unsafe driver was immune from arrest and prosecution in the U.S., merely because s/he happened to be born in the U.S. to undocumented parents and therefore was supposedly not "subject to the jurisdiction."
[0] https://en.wikipedia.org/wiki/Slaughter-House_Cases#Analysis
[1] https://www.theguardian.com/politics/2017/feb/08/boris-johns...
(Whether Louisiana's action in granting a private monopoly on meat processing was a reasonable way to promote public safety was another question: The Court's opinion focused on the 14th Amendment and federal privileges and immunities vs. those under state law.)
The 5-4 majority's rationale went too far: As the opinion says, the Reconstruction Amendments (13 through 15) were intended to hem in state governments — notably but not exclusively those of the South, which by and large were dominated (often through murderous mob- and militia violence) by white, racist, recent- and still-aspiring enslavers — but the majority left the door too open to the possibility of states'-rights arguments. [0]
Haven’t had a chance to dig into it in detail, but it addresses evidence from the drafting process that isn’t addressed in Wong Kim Ark.
The American Revolution was, by its inherent nature and through its express principles, an effective throwing off of the common law’s yoke of jus soli and its perpetual allegiance in favor of a consent-based compact theory of government.
and a page later it's special pleading for Grotius, Emer Vattel, and compact theory. I gave up at that point. Perhaps there's some brilliant new theory buried in the last 1/3 of the article, but if you didn't think it worth reading in detail I'm not inclined to mine it for you!
To be honest, the fact that it's from the Heritage foundation and published in a very conservative journal of law and politics give it a double flavor of polemic rather than scholarship. One can construct eloquent arguments for anything, from reinstating dred Scott to invalidating the Declaration of Independence and the subsequent formation of the USA - and indeed in this age of LLMs I expect legal polemics further proliferate. But when you get down to the actual substantive arguments, this paper strikes me as just another of the 'we wish things were different' type, wishing that the US had built its jurisprudential edifice on a continental rather than a common law substrate. Perhaps if the proponents of this idea invested their efforts in amending the Constitution (or going the Conventional route) they might have more success in building the required consensus.
I’ll respond to your other point, but 90% of legal academia thinks “emanations from penumbras” is constitutional law. They’re wingnuts and kooks too. Nobody has the color of authority here. We gotta reconstruct the correct answer from first principles.