The birthright citizenship dispute is surely destined for the United States Supreme Court. Is there any legal authority for that court to issue a decision abrogating birthright citizenship for the offspring of illegal aliens?

The foundational rock-bottom grandfather principle of all systems of law is that the law is the will of the lawgiver. This is what Richard II meant when he said, “The laws are in my mouth,” and it was for this very stance that Charles I lost his head.

Under this legal doctrine, a statute is the will of the legislature, and a constitutional provision is the will of the constitutional convention. The quest, therefore, of a court tasked with interpreting a statute or constitutional passage is to determine and give effect to the intent of the legislature or constitutional convention that drafted the legal text under review.

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We are all familiar with instances where a person utters a statement he does not literally mean. Thus, one might wonder whether a court might, on occasion, find that a legislature did not literally mean what it wrote in a statute.

Yes, that does happen, and when it happens, what is a court to do? Well, the principle of interpretation is that the court must declare the law to be what the legislature intended rather than what it wrote. This distinction between literal text and actual intent is expressed in the legal doctrine that the text of a statute is evidence of the law but is not necessarily the law itself. Thus, it is that in the event of a text/intent dichotomy, it is the intent, not the text, which is the law.

Now, the birthright passage in question is the sentence in the 14th Amendment that reads, “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.”

This text presents two puzzles for a reviewing court:

Puzzle #1: Did the drafters intend to require that the mother be lawfully present in the United States at the time of the birth?

Paul Dowling presents a cogent argument that the drafters intended exactly that.

Puzzle #2: Did the drafters intend that the newborn child must not be subject to the jurisdiction of any nation other than the United States?

Ryan McMaken claims that the “original meaning” of the 14th Amendment “refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.”

And finally, let us note that many readers know that constitutional law expert Alan Dershowitz has recently been quoted as saying, “I think birthright citizenship was a dumb idea.” He also remarked that birthright citizenship is “foolish.”

Dershowitz’s comments might wheel into play a grand principle of law that conditions even the will of the lawgiver. The principle “Cessat Ratio, Cessat Lex,” translated as “What is not reason is not law,” authorizes a court to invalidate a statute or constitutional passage based on irrationality.

Therefore, in conclusion, there are (at least) three ways for the Supreme Court to rule contrary to the literal text of the birthright citizenship passage:

(1) Find that the drafters intended for the mother to be lawfully present.

(2) Find that the child is not subject to the jurisdiction of the United States.

(3) Find that the rule stated in the literal text is contrary to reason.