On Wednesday Judge Deborah Boardman of the U.S. District Court of Maryland issued a preliminary injunction blocking enforcement of President Trump’s Jan. 20 executive order "Protecting the Meaning and Value of American Citizenship."
The purpose of that executive order is to end federal recognition of birthright citizenship for the children of illegal aliens, a practice the Justice Department properly argues creates a "perverse incentive for illegal immigration."
In issuing the injunction, Judge Boardman explained, "The executive order conflicts with the plain language of the 14th Amendment, contradicts 125-year-old binding Supreme Court precedent and runs counter to our nation’s 250-year history of citizenship by birth."
History is not on Judge Boardman’s side.
Despite her insistence about "plain language," the Fourteenth Amendment does not address the status of the children of illegal aliens because when the amendment was ratified in 1868 there were no aliens residing illegally in the United States and never had been. (See "Birthright Citizenship Contradicts Both Common Sense and Law," Newsmax.com, Feb. 3, 2025).
Judge Boardman’s injunction rests — as her allusion to “125-year-old binding Supreme Court precedent” indicates — on the Supreme Court’s 1898 decision in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). She regards this precedent as settled law. It shouldn’t be.
That case involved a young man born in California in 1873. His parents were unnaturalized immigrants who lived in the United States for 20 years before returning to their native China in 1890.
Their son went to visit them in 1894.
Returning to the United States in 1895, he was denied entry on the grounds that he was not a citizen. The court correctly ruled that Wong Kim Ark was a citizen at birth under the Fourteenth Amendment.
Proponents of birthright citizenship cite this decision as a basis for considering all persons born in the United States citizens, ignoring the difference between Wong Kim Ark, whose parents entered the United States legally and were living legally in the United States when he was born, and a child born to parents living here illegally, having entered the country in defiance of American law.
Nothing in the Wong Kim Ark decision addresses this distinction.
By 1898 Congress had passed laws barring some immigrants and denying citizenship to others, creating the possibility that aliens would be in the country illegally and have children here. The court might have addressed the question: Are the children of illegal aliens, citizens at birth?
The court failed to do so. Instead, it buttressed its decision with references to English common law inapplicable to American circumstances.
It made the false assertion that there is no substantive difference between subjects and citizens and since English common law held that all children born in the realm were subjects, all children born in our republic must be citizens.
Regarding people born in England as subjects made sense in the monarchical culture in which the common law developed.
The subjection of ordinary people to feudal masters was the legal basis for compelling them to serve the crown.
Pre-modern states had a substantial stake in subjecting people to their will but offered their subjects very little in return.
Even in England subjects enjoyed few of the rights we associate with citizenship.
They were under the nominal "protection" of the monarch, but only to the degree the crown was prepared to defend the kingdom from invasion and provide subjects with access to courts.
Subjects paid taxes and faced compulsory military service, but few could vote.
The royal government provided inadequate pensions to disabled soldiers and sailors but otherwise did little to relieve poverty.
Entitlements — old age pensions, veterans’ benefits, public healthcare — were unknown.
Subjection to the English crown was not a privilege.
The common law principle of birthright subjection made no sense in our republic, where citizenship is a relationship between the people and the government is subordinate to citizens, subject to their will.
There’s no reason to regard the Wong Kim Ark decision as sacred writ.
It was handed down by the same court that decided Plessy v. Ferguson, 163 U.S. 537 (1896), providing constitutional cover for an apartheid regime that subverted justice for most of the twentieth century.
Americans properly abhor Plessy, which provided racists with a legal basis for separate (but never equal) schools and racial segregation in hotels, restaurants, and public accommodations.
It was an abomination.
So was the majority opinion in Wong Kim Ark. Both decisions flowed from flawed understanding of republican citizenship. It’s time for Congress to correct this error.
Jack Warren is an authority on the history of American politics and public life and editor of The American Crisis, an online journal of history and commentary (www.americanideal.org). His newest book is, "Freedom: The Enduring Importance of the American Revolution." Read Jack Warren's Reports — More Here.