The recent case before the Supreme Court on birthright citizenship points to a more fundamental constitutional crisis that has been called “post-constitutionalism.” We have reached the era in which the imperatives of the administrative state have replaced the formalism of the Constitution. 

The ideological liberals who advocated this radical change contend that the Constitution has been replaced by the administration with the deliberate purpose of undermining the constitutional structures of limited government to magnify the power and extend the reach of administrative rule into every aspect of American life. They believe political decisions, based on election and ultimately the consent of the governed, have been replaced by decisions made by unelected bureaucrats — the “deep state” is real, and its creation was not haphazard. 

However, the case before the Supreme Court on birthright citizenship is not as complicated as the court and the parties have made it out to be. The plain language of the 14th Amendment seems clear enough:

“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.”

It is clear that not all persons born within the geographical limits of the United States are automatically citizens. They must also be “subject to the jurisdiction,” thus establishing two requirements for citizenship. But what does it mean to be “subject to the jurisdiction”?

The principal supporters of the amendment were explicit: not owing allegiance to any other country, owing exclusive allegiance to the U.S. It is broadly agreed that the purpose of the 14th Amendment was to constitutionalize the Civil Rights Act of 1866, which was passed over the veto of then-President Andrew Johnson. 

A supermajority of both chambers of Congress approved this act, which established the citizenship of newly freed slaves and the protection of their rights and liberties on the exact same basis as white citizens. Many in Congress initially argued that the passage of the 13th Amendment in 1865 granted citizenship and the rights and liberties attached to that status. Others argued that there should be explicit legislation, which resulted in the Civil Rights........

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