By Walter E. Block (July 2026)
The Citizenship Clause of the 14th Amendment, which was ratified in 1868 states: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.'”
Why discuss this black letter law? It is due to the controversy brought to us courtesy of President Donald Trump. He is attempting to banish people born here in these United States of parents who lacked citizenship.
In the view of the Trump administration, the phrase “subject to the jurisdiction thereof” does not include progeny born to people in the country unlawfully or temporarily.
This clause has been reasonably interpreted so as to exclude from citizenship babies born to foreign ambassadors, since they are clearly (well, as clearly as anything else in this murky corner of the law) subject to foreign, not domestic law. (However, if they were to commit a murder in daylight with dozens of witnesses, one might have reason to doubt this, not de jure, but possibly de facto). Also excluded would be enemy soldiers captured by the US military and brought to our shores. The Indian Citizenship Act of 1924 rectified an injustice presiding before that date which did not confer this status upon Native persons.
But what about illegal immigrants? The Trump Administration is now trying to change past procedure which would automatically grant such status to new children emanating from that source. So far, several lower courts have insisted upon a continuation of this practice, thus spurning this Trump initiative.
At first glance, Trump is correct. After all, strictly speaking, and how else should we speak about such an important legal issue as this, illegal immigrant are criminals, plain and simple. They have broken the law of the land (we are not now discussing what the law should be, just what it most patently is.) They are akin to foreign soldiers who have improperly invaded our country. Illegal immigrants are law breakers, trespassers, who should be, if our law is to be followed, evicted from our country, and kept in prison until that occurs.
What about those illegals who would be unjustly killed were they to be returned against their will to their country of origin? US law takes into account such circumstances, and either deports them to a third nation in which they would be safe, or makes an exception to this principle and allows them to remain on humanitarian grounds. Then, their children would become citizens.
The only difficulty with the foregoing is the case of black people. Some of them were brought to the country, legally, as slaves, and when they were freed by law in 1865, elemental justice required that they become citizens and their progeny too, of course. And this, indeed, occurred.
However, there were some blacks who arrived here, also in chains, but illegally. Slavery was still legal in this country, but the importation of such people was prohibited by law, in 1808. Are they to be treated as criminals, enemy soldiers, ambassadors from foreign lands, etc., and sent back to their home country from which they were seized? Yes, if they were considered to be members of this criminal category.
But to do so is legally and morally preposterous. They were not criminals under any law that a civilized society should recognize. Rather, they were innocent victims, not purposeful actors, when they arrived here. They are starkly to be distinguished from modern day illegal immigrants, who landed here of their own free will, and are thus guilty of purposefully violating our laws.
Suppose I drug someone, or successfully hypnotize him, and then compel him to commit a crime. Is he then to be considered a criminal? No, of course not. Instead, I am the felon. In similar manner, the true law breakers when innocent folks were brought to our shores between 1808 and 1865 were not they, themselves. Instead, it was those who compelled them to undergo the middle passage. Paradoxically, slave importers who operated before 1808, violated no US law. They were just evil.
If we follow the logic of the foregoing, Mr. Trump’s policy cannot be sustained. Yes, the illegal immigrants, themselves, may be deported. They violated the law. But we are now discussing their children, a sharply different matter. They are analogous to the illegally brought but entirely innocent slaves imported between 1808 and 1865. They are in the same category as my drugged or hypnotized victim. These children broke no law! Mr. Trump would deny them birthright citizenship only in contravention of law.
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Walter E. Block is Harold E. Wirth Endowed Chair and Professor of Economics, College of Business, Loyola University New Orleans, and senior fellow at the Mises Institute. He earned his PhD in economics at Columbia University in 1972. He has taught at Rutgers, SUNY Stony Brook, Baruch CUNY, Holy Cross and the University of Central Arkansas. He is the author of more than 600 refereed articles in professional journals, three dozen books, and thousands of op eds (including the New York Times, the Wall Street Journal and numerous others). He lectures widely on college campuses, delivers seminars around the world and appears regularly on television and radio shows. He is the Schlarbaum Laureate, Mises Institute, 2011; and has won the Loyola University Research Award (2005, 2008) and the Mises Institute’s Rothbard Medal of Freedom, 2005; and the Dux Academicus award, Loyola University, 2007. Prof. Block counts among his friends Ron Paul and Murray Rothbard. He was converted to libertarianism by Ayn Rand. Block is old enough to have played chess with Friedrich Hayek and once met Ludwig von Mises, and shook his hand. Block has never washed that hand since. So, if you shake his hand (it’s pretty dirty, but what the heck) you channel Mises.
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