Last week, our friends at The Federalist ran a couple of pieces — one by Brianna Lyman and the other by John Daniel Davidson — on the opportunity currently before the U.S. Supreme Court with respect to birthright citizenship and the legal absurdities our current practice encompasses. If you’re familiar at all with the history of this highly unusual practice, you know that it emanates from the Citizenship Clause of the 14th Amendment, which reads… 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. This was written in an effort to guarantee that states wouldn’t write laws abusing the citizenship rights of former slaves in the Southern states after the Civil War. Honestly, we would do ourselves a lot of good if we repealed the 14th Amendment and started over with a fresher and better-written statement of the laudable goals its framers sought to achieve. But that’s a whole other column. Anyway, the “subject to the jurisdiction thereof” part in the Citizenship Clause was written in language that was plain at the time but has been badly obfuscated since. Lyman traced the problem to an 1898 case you’ve probably heard of: Wong Kim Ark. That was a case which wasn’t all that badly decided, but the majority opinion was atrociously written and has set a terrible precedent… Wong Kim Ark did more than just misinterpret the 14th Amendment. It effectively rewrote the citizenship clause of the 14th Amendment according to English feudal principles that the founders — and framers — rejected. In doing so, the court created a doctrine that the amendment’s authors surely never intended. The Supreme Court now has the chance to correct that mistake. Wong Kim Ark was born in 1873 in San Francisco to Chinese parents who were subjects of the Emperor of China but were “domiciled residents” at the time of his birth. After visiting China as an adult, Ark was denied entry into the United States on the grounds that he was not a citizen. The question before the court was whether a child born to “subjects of the Emperor of China, [who] have a permanent domicile and residence in the United States … becomes at the time of his birth a citizen of the United States.” A 6-2 majority, led by Justice Horace Gray, said yes. But the reasoning that got the majority to its decision is indefensible. Gray based his entire opinion on the idea that the 14th Amendment must be understood in terms of English common law. “In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution,” Gray reasoned. “The language of the Constitution, as has been well said, could not be understood without reference to the common law.” Gray further argued that “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.” The problem is that the “subject to the jurisdiction of” piece is directly contrary to the English common law Gray based the Wong Kim Ark decision on. That’s something the dissent in that case recognized… “[W]hen the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the Colonies in derogation of the principles on which the new government was founded was abrogated.” And the principle at hand in common law was that a serf owed allegiance to his lord and was tied to the land, so the inherent rights and responsibilities that would be somewhat analogous to citizenship would be inferred from that relationship. But the framers of the Constitution and the 14th Amendment were establishing citizenship rather than feudal servitude, and that’s something very, very different. Davidson picks up on Lyman’s argument and expands a little further on the legal question… According to feudal obligation, expatriation is impossible without the consent of the lord to which one owed fealty by birth. This is of course totally incompatible with the American Founding, to say nothing of the American Revolution, both of which rely on a theory of citizenship based on consent, not birth. The Founders themselves were of course born in lands controlled by the British crown, but by breaking with the crown and declaring (and then winning) independence, they put forward a radically different understanding of citizenship and political community — one based on the mutual consent of free men. In framing the 14th Amendment, writes Portteus, the amendment’s authors and sponsors believed that they were expunging a relic of European feudalism. The nature of political obligation under American chattel slavery very closely resembles European feudal obligation. Slaves were bound from birth to a master, and could only be released from their obligation with the master’s assent. They sought to transform subjects, slaves in this case, into citizens. The author of the citizenship clause and its supporters consciously and vocally rejected the doctrine of feudal obligation. Indeed, Congress passed a companion to the 14th Amendment, the Expatriation Act of 1868, which declared expatriation to be “a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” This was an explicit rejection of the medieval English doctrine of feudal obligation. As Rep. George Woodward of Pennsylvania said on the floor of the House of Representatives, “It is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it.” With Wong Kim Ark, the Supreme Court reintroduced to American law the concept of feudal obligation that the framers of the 14th Amendment only thirty years earlier had thought they were stamping out! And as they so often do, Democrats today are apt to defend the political arrangements of the antebellum south; they would impose a conception of citizenship and political obligation that, in the American context, applied to slaves, not free men. Then he adds a bit of practical consideration… But there’s another, more immediate reason to reject birthright citizenship. As a practical matter, under conditions of mass immigration birthright citizenship is simply national suicide. Consider that during the four years of the Biden administration, some 10 million people (probably more) entered the country illegally. Most of them were released or paroled by federal authorities pending the outcome of immigration and asylum cases that will take years to be adjudicated because of the backlog in our immigration courts. The fact is, mass uncontrolled immigration has fundamentally changed the debate over birthright citizenship. Do proponents of birthright citizenship really believe that the children born in America to these 10 million illegal immigrants are and should be U.S. citizens simply because they were born on American soil? Maybe they do, but it’s an insane position to hold. It would mean millions of new citizens whose only connection to this country is that their parents snuck over the border in violation of our laws. Accepting this, and codifying it, amounts to a total rejection of national sovereignty and a repudiation of the American idea of citizenship by mutual consent — consent of the members of the political community and consent of those who wish to join it. Whatever the Supreme Court said in Wong Kim Ark, and whatever our understanding of the 14th Amendment has been in the 127 years since that decision, the situation created by mass immigration has changed the terms of the debate. Biden’s four years of industrial-scale illegal immigration and retroactive “documentation” conferring dubious legal status on millions of illegal aliens represents a total break with the past. He’s certainly not wrong there. And I can show you proof, because this showed up over the weekend… Clerks working for family court Judge Amy Pellman were reviewing routine surrogacy petitions when they spotted an unusual pattern: the same name, again and again. A Chinese billionaire was seeking parental rights to at least four unborn children, and the court’s additional research showed that he had already fathered or was in the process of fathering at least eight more — all through surrogates. When Pellman called Xu Bo in for a confidential hearing in the summer of 2023, he never entered the courtroom, according to people who attended the hearing. The maker of fantasy videogames lived in China and appeared via video, speaking through an interpreter. He said he hoped to have 20 or so U.S.-born children through surrogacy — boys, because they’re superior to girls — to one day take over his business. Several of his kids were being raised by nannies in nearby Irvine as they awaited paperwork to travel to China. He hadn’t yet met them, he told the judge, because work had been busy. There’s more… Another wealthy Chinese executive, Wang Huiwu, hired U.S. models and others as egg donors to have 10 girls, with the aim of one day marrying them off to powerful men, according to people close to the executive’s education company. Wait, what? Yes. Chinese oligarchs are now creating a master race of offspring, built and equipped with U.S. citizenship, so they can play the long game. (RELATED: Eugenics: The Dark Side of IVF) Remember that line from Braveheart when Longshanks decides how best to handle the unruly Scots? This isn’t exactly that, and it certainly comes off as more dramatic in an English accent than a Chinese one, but both examples are absurdities that lead to dark places. It shocks the conscience to think that Chinese video game execs are flying in American surrogates as breedstock so that he can run his own Wilt Chamberlain multiplication game, and it’s all quite legal and our problem rather than his if he decides not to pick up the tab. But it’s legal. It does make you lose quite a bit of sympathy for Wong Kim Ark now that we know where this leads. After all, back in 1898, it seemed as though justice was done in his case. At the expense of any rationality in immigration policy, though? This has to be fixed. The concept of birthplace tourism is an utter absurdity, and it’s been going on for decades. Now, it’s more like conception tourism for Chinese plutocrats and communist party apparatchiks attempting to Longshanks their way into the long geopolitical game. Does that sound absurd to you? It should. But why is it absurd? Because there’s no way something like this would ever happen, right? Some hostile nation deluges us with babies who are born with U.S. citizenship but owe allegiance to that hostile nation, and we would never tolerate it. Well, sure. Welcome to that world of absurdity, because that’s exactly where we are. And the Supreme Court can fix it. They’d better. READ MORE from Scott McKay: Five Not-So Quick Things: The Green Shoots Which Will Only Get Greener Did Jasmine Crockett Take Republicans’ Bait? Are They Illegal? Because If They’re Illegal, That’s Why They’re Getting Arrested