The Folly of Trump v. Barbara

In Trump v. Barbara, the Supreme Court makes birthright citizenship depend on irrationality. 

Tom G.K. Swift | November 2, 2026

In Trump v. Barbara, the Supreme Court constitutionally requires, for the first time, the natural-born citizenship of children born in the U.S. (and its territories) to illegal immigrants and birth tourists. The grave foolishness of this holding aside, the child’s natural-born citizenship is predicated on partial jurisdiction (the child’s parents are under it), and yet the natural-born citizenship of the child is necessarily predicated on complete jurisdiction. Two contradictory things determine the child’s American citizenship! Something’s very wrong.

But first things first.

Foreigners, such as temporary visitors, are under partial jurisdiction; they have to obey our laws, and are also protected by them. Only citizens are under complete jurisdiction; in addition to obeying the law and being protected by it, they can do things like vote, receive Social Security benefits, and proudly call themselves Americans. Granting this, how did the Court manage to bungle things so badly?

We can start with medieval common law, because that’s where the Court starts by resting its decision on the common law of jus soli (right of the soil). This involves a reciprocal allegiance to the king in return for his protection.

In a traditional monarchy, such as that of Britain, protection and allegiance are symmetrical and indeed reciprocal. But in a modern democracy, perhaps for various reasons, but with mass migration definitely one of them, they’re no longer symmetrical; protection is more capacious than allegiance in terms of who it includes. Note that in medieval times, the symmetry between protection and allegiance as the basis of jus soli was guaranteed by the absence of mass migration, which is what made jus soli comprehensible and rational in the first place.

Today,........

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