This is the latest Imprimis article from Hillsdale College. Edward J. Erler is obviously a great proponent of banning birthright citizenship from illegal immigrant parents (would he care about legal immigrant parents, one would thought so, but then he went on to also attack...) and dual citizenship (Taiwanese, watch out!).
My critic is done by the help of Google Gemini.
Anticipating this coming summer (late June or early July 2026?), the Supreme Court's decision for Trump v. Barbara (class-action lawsuit challenging President Trump's executive order ending the practice of birthright citizenship), Erler argued that birthright citizenship was never meant by the framers of the Constitution and the 14th Amendment. To confuse what the framers meant, which was that citizenship comes with the exclusive allegiance demand (which Erler interpreted from "subject to the jurisdiction" in the Fourteenth Amendment), which is broken by illegal immigrant parents as well as dual citizenship holders, according to Erler, is to drive America back to feudalism and replacing citizenship with the master-servant relationship.
It seems that Erler is hoping that the 1898 Supreme Court decision in U.S. v. Wong Kim Ark (6-2 vote that a child of legal resident aliens is entitled to birthright citizenship) be overturned this summer. Because Supreme Court Justice Horace Gray confused the terms by stipulating that "citizen" and "subject" were convertible terms, confusing feudal monarchy and republicanism.
Erler's attack is chiefly based on the need to distinguish Birthright Subjectship (as defined by William Blackstone) from Birthright Citizenship, an American concept unknown to British common law (jus soli, right of the soil). Perpetual allegiance vs. exclusive allegiance. Feudal vs. consensual model (Locke's Social Contract philosophy).
My opinion:
Thus the weakness in Erler's argument is where he interprets the "jurisdiction" clause as owing "exclusive political allegiance" to the U.S. instead of just being subject to U.S. laws which applies to tourists, legal and illegal aliens alike. By dividing "jurisdiction" into a territorial one and a political one, Erler is positing, dare I say, an even more radical direction for U.S., which is a nationalistic (U.S. is always #1 in the world) one, not a patriotic (I love U.S.A. my country) one.
As for exclusive allegiance, it is obtuse to assume legal immigrants would consent to U.S. jurisdiction better than illegal immigrants simply because of the legality of their immigration status.
To be honest, I really don't see the need to dichotomize Jus Soli with Erler's Social Compact Theory. I see many U.S. citizens do serve their country in a Feudal master-slave relationship and everyone loves it when nobody is throwing fits about it. And already you have virtual entire political opposition party who would idolize the reciprocal consent (both parties must agree) that their right wing opponents like Erler prefer, yet they would not vote for Erler's view nor vice versa because they would take Erler's consensual concept to an extremity that would probably disgust Erler.
The only concern of radical right folks like Erler I am willing to fight for, would be folks like the Chinese making a business out of this, a deliberation of making U.S. babies by sending pregnant women to U.S. just to get birthright citizenship. This is a loophole that needs to be addressed. Severe punishment, what not, I'm mostly for it. But not all kinds of immigrants in general, this is a very poor argument of overgeneralization by the radicals, right or left.
Gemini:
The "Exceptions" Argument: Most historians (other originalists like Erler such as James C. Ho would disagree with Erler) agree that the Framers of the 14th Amendment intended only three specific exceptions to birthright citizenship: 1) children of foreign diplomats, 2) children of invading armies, and 3) members of Indian tribes. Since illegal immigrants are not in those three categories, many legal scholars argue the text must include them.
Counter-Argument: Critics argue that Erler's view turns citizenship into a "gift" from the state rather than a "right" held by the individual. They argue that a territorial birthright is a more objective, stable "bright-line" rule that prevents the government from picking and choosing who "belongs" based on shifting political whims.
If Erler’s view were adopted, the U.S. would move toward a system more like Germany or Japan (jus sanguinis, or right of blood), where citizenship can only be passed down through parents. And non-citizens must apply for naturalization themselves. This would be a seismic shift in American identity, as the U.S. has historically defined itself not by shared bloodline or ancestry, but by the "accident of birth" on the "consecrated soil" of the Republic. Erler's position is no stranger to the 1866 Congressional Debates: During the drafting of the 14th Amendment, Senator John Conness of California explicitly addressed the children of Chinese immigrants (who were legal residents at the time but barred from naturalization). He stated: "The children of Chinese parents… are and will be citizens… This will have no other effect."
