Trump v. Barbara (No. 25-365) goes to oral argument tomorrow, and I think we are watching the biggest constitutional correction in over a century unfold in real time. I appeared on Fox News to make the case, and I want to explain it fully here — because the left and the mainstream media are not going to tell you the truth about what the Fourteenth Amendment actually says.
The Text Has Two Conditions, Not One
The Citizenship Clause of the Fourteenth Amendment reads:
“All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.”
Notice that the text imposes two conditions, not one. First, you must be born in the United States. Second — and this is the part that has been treated as invisible for decades — you must be subject to the jurisdiction thereof. That phrase is not surplusage. It is not an inkblot. It means something, and that something is loyalty and allegiance.
We know exactly what it means because the Fourteenth Amendment did not write that language from scratch. It codified the Civil Rights Act of 1866, enacted two years earlier. Here is the critical language from that statute: all persons born in the United States and not subject to any foreign power are citizens. That is the same test. If you or your parents are beholden to a foreign country — if you are here illegally, or here on a temporary visa with no intention of becoming American — you are not subject to the jurisdiction of the United States in the constitutional sense. Your child born on American soil is not a citizen.
This is also why Native Americans were not made citizens by the Fourteenth Amendment in 1868. It took a separate twentieth-century statutory change to do that — precisely because, while they were born on American soil, they were loyal to their respective tribes, not to the United States.
Why This Has Never Been Decided Before
The honest answer is standing. Until Donald Trump’s executive order — Executive Order 14160, signed in January 2025 — there was no mechanism to bring this question to the Supreme Court. The only people directly affected by the existing birthright-citizenship practice were the beneficiaries of it. Beneficiaries do not sue to stop the thing that benefits them. So for over a hundred years the constitutional text sat unexamined by the courts, the political class continued importing the policy, and the debate was entirely academic.
Trump’s executive order changed that. By restricting citizenship for children of illegal aliens and temporary visitors, it created real parties with real adverse interests and, for the first time, a live case or controversy that the federal courts have to decide. That is not a small thing. That is a genuinely historic use of executive authority to force a constitutional question into the open.
Fox News contributor Tom Dupree acknowledged the administration has presented a stronger argument than he initially expected — he said they’ve “made it a close case.” Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, went further:
“When the 14th Amendment was drafted, some of the drafters said explicitly that it does not allow for birthright citizenship. The problem are these six words, this clause put in the middle of an otherwise clear sentence. But the key is that those words were not in that sentence in the original draft. They were intentionally inserted. So you can’t just treat them as superfluous.”
My read is even stronger than Turley’s. The 1866 Civil Rights Act does not leave this ambiguous. Congress knew exactly what subject to the jurisdiction thereof meant when they enshrined it in the Constitution two years later.
Why This Connects Directly to the Second Amendment
I want to be direct about why I care about this beyond pure constitutional fidelity, because this is exactly the kind of thing the gun-control left does not want you to connect the dots on.
Peter Schweizer has documented how senior Chinese Communist Party officials are using birth tourism on an industrial scale to plant U.S.-citizen children in America — children who will reach voting age and participate in our elections. Across the board, mass importation of people from cultures with zero lived experience of private gun ownership produces predictable electoral results. You cannot bring in millions of people from countries where the only people with guns are corrupt officials, cartels, and government enforcers, and then expect them to vote to preserve the Second Amendment. They have no historical connection to it. They have no lived experience of the good guy with the gun.
The demographic transformation of Virginia is the proof of concept. Virginia has roughly 1.2 million foreign-born residents, and it has tracked almost perfectly with the rise of gun-control legislation in that state. That is not a coincidence.
What the Court Should Say
Trump v. Barbara gives the Court the opportunity to say what the text has always said: citizenship requires birth in the United States plus allegiance to the United States. Not anchor babies. Not birth tourism. Not children of people who broke into the country.
I think there is an excellent chance this Court gets it right. When it does, it will be the largest constitutional correction of a century-long error in American history — and the biggest legal victory of Donald Trump’s political career.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.