A Presidential Endorsement
When the President of the United States reposts your constitutional analysis to his millions of followers on Truth Social, you have to stop and take notice. That is exactly what happened this week when President Donald Trump shared a Fox News Channel interview featuring constitutional attorney Mark W. Smith breaking down the legal battle over birthright citizenship just days after the Supreme Court heard oral arguments on the matter.
The interview, which originally aired ahead of the April 1 oral arguments, tackled one of the most consequential constitutional questions of this Supreme Court term: whether the Fourteenth Amendment’s guarantee of citizenship to all persons “born… in the United States, and subject to the jurisdiction thereof” actually mandates automatic citizenship for children of illegal aliens and temporary visitors.
The Text Everyone Ignores
The key to this entire debate sits in six words that the political left would prefer to treat as decorative ink: “subject to the jurisdiction thereof.” As Smith explained on Fox News, the Fourteenth Amendment imposes two distinct requirements for birthright citizenship — not one. You must be born on American soil, yes. But you must also be “subject to the jurisdiction” of the United States, which historically meant owing full political allegiance to this country and not to a foreign power.
This is not some novel legal theory cooked up by the Trump administration. It is the plain text of the Constitution, and it tracks directly to the legislative predecessor that gave the Fourteenth Amendment its meaning.
The Civil Rights Act of 1866: The Missing Link
The constitutional argument becomes even more compelling when you trace the Fourteenth Amendment back to its statutory origin. In 1866, Congress passed the Civil Rights Act, which declared that all persons born in the United States “and not subject to any foreign power” were citizens. The entire purpose was to guarantee citizenship to formerly enslaved Americans and their children — people who unquestionably owed allegiance to the United States and no other nation.
When Congress realized that a future legislature could simply repeal that statutory protection, they moved to enshrine the same principle in the Constitution itself. The Fourteenth Amendment, ratified in 1868, was designed to constitutionalize the Civil Rights Act of 1866. The phrase “subject to the jurisdiction thereof” was the constitutional translation of “not subject to any foreign power.” These six words were not accidental. They were deliberately inserted into the amendment’s text, and as Fox News contributor Jonathan Turley observed, you cannot simply treat them as superfluous.
This historical link also explains why Native Americans were not considered citizens under the Fourteenth Amendment despite being physically present in the United States. Because they maintained allegiance to their respective tribal nations, they were not “subject to the jurisdiction” of the United States. It took a separate act of Congress in 1924 to extend citizenship to Native Americans — a fact that demolishes the claim that mere birth on American soil was ever sufficient.
Standing: Trump’s Masterstroke
One of the most underappreciated aspects of this entire saga is how the case arrived at the Supreme Court in the first place. For over a century, no one had legal standing to challenge the prevailing interpretation of birthright citizenship. The beneficiaries of the policy — children born on U.S. soil to non-citizen parents — had no incentive to sue. They were getting a windfall. President Trump’s executive order, signed on January 20, 2025, was the catalyst that finally created an actual legal controversy ripe for judicial review.
Even Tom Dupree, appearing on Fox News Sunday, acknowledged that the administration presented a “much stronger, more compelling argument against birthright citizenship” than he had initially expected. Whether or not five justices ultimately side with the administration, the executive order accomplished something no prior president managed: it forced the Supreme Court to confront the actual text and history of the Citizenship Clause for the first time in the modern era.
What Comes Next
The Supreme Court heard oral arguments on April 1, and a decision is expected by late June or early July. Whatever the outcome, the fact that this question is finally being litigated at the highest level represents a significant constitutional moment. For too long, “subject to the jurisdiction thereof” has been read out of the Fourteenth Amendment as though those words carry no independent meaning. The Trump administration has now put the Court in a position where it must grapple with text, history, and original meaning — the very methodology the Court has increasingly embraced in recent terms.
The trend remains our friend, and the fight continues.
This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.