Society News

Citizenship and Equality Under Law by Birth

By,  Christopher A. Duggan, Esquire – Society Past President

         Smith Duggan Cornell & Gollub, LLP

March, 2026

Section one of the 14^th Amendment states in clear, direct terms, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”  When adopted in 1868, this merely restated what had been the law since the country’s founding, and indeed of the Common Law dating back to 1608 in England.  Anyone born on American soil, under and American flag was an American citizen.  It is birthright citizenship, called jus soli, which had been ignored only once in America’s history in the notorious Dred Scott v. Sandford, 60, U.S. 393 (1857), where Chief Justice Roger Brooke Taney ruled that Black people could never be American citizens simply because of their race and they had no rights White people were bound to respect. That was the last significant event that made the Civil War inevitable.

The birthright citizenship clause in the 14^th Amendment was drafted in part to expunge the stain of the odious Dred Scott holding, but that was not the only reason.  The drafters were determined to root out the cause of the Civil War, which they knew was a race-based society in which people’s rights depended upon the color of their skin or place or origin. Henceforth, America would live up to its creed that all people were to be equal under law from birth.  There would be only one class of citizens, all vested with the same Privileges or Immunities of all other citizens. 

When birthright citizenship was first challenged by the government asserting that a man born in America was nonetheless not an American because his skin was a different hue, the Supreme Court, in an opinion by Justice Horace Gray of Massachusetts, ruled 7-2 that Section One means what it says and says what it means.  A person born in the United States is a citizen of the United States regardless of parentage.  United States v. Wong Kim Ark,169 U.S. 649 (1898).  That ruling has been affirmed by every court to decide the issue since, creating 125 years of unbroken precedent and standing for equality and self-government.  The People make the law in America.

On January 20, 2025, the day he took office, the current President issued an Executive Order attempting to change by executive fiat what The People enshrined by Constitutional Amendment.  Under the EO, the Executive, not The People, would decide who can be an American citizen.  Children of undocumented immigrants, or even of one parent whose visa may have expired, were not American citizens even if born in America.  The EO would leave these children stateless, a condition the Supreme Court described as “the total destruction of an individual’s status in organized society.”  Trop v. Dulles, 356 U.S. 86, 100 (1958).

The United States District Court for the District of New Hampshire ruled that the Administration’ s attempted EO violated both Section One of the 14^th Amendment and a federal statute, 8 U.S. C. § 1401(a) passed to enforce the Constitutional mandate.  Barbara v. Trump, 790 F.Supp.3d 80 (D.NH 2025).  The Government appealed this decision directly to the U.S. Supreme Court.  Using what can only be described, generously, as twisted logic, the Administration argues that children born to undocumented immigrants are not “subject to the jurisdiction” of the United States, a contention that is stunning in light of what ICE is doing at the Administration’s behest in places like Minnesota, Chicago, and even to college students in New York and in Medford Massachusetts. 

The Charitable Irish Society was founded in 1737 to aid immigrants seeking a new life on this soil, and, after Independence, has worked to assist those who wish become citizens of this country governed by a rule of law not of a dictator.  The Society felt compelled to add its voice to those who, like the Respondents, believe the Constitution means what it says and that the fundamental law applies evenly to everyone in America. 

The Society filed an amicus brief in support of Respondents, and more broadly in support of the rule of law.  Our brief explains that the phrase “subject to the jurisdiction thereof,” excludes only three narrowly defined groups of children born in America from American citizenship:  (1) children of Indians living on tribal lands; (2) children of foreign diplomats; and (3) children of invading occupying armies.  Native American tribes had treaties with the US Government, and the others had immunity from US jurisdiction under international law.  Therefore, children born to these parents were not “subject to US jurisdiction.”  But birth citizenship and its promise of equal protection under law applies to everyone else born in this land.  The legislative history is crystal clear on that point.  It has nothing to do with the immigration status of documented or undocumented immigrants whatsoever.

Our brief centers on a debate in the Senate in 1866 between California Senator John Conness, an Irish immigrant from Abbey, Galway, who supported the birthright citizenship clause and Senator Edgar Cowan from Pennsylvania, a states-rights Democrat, who opposed it.  Cowan feared that his State would be overrun by dark skinned “Gypsies” and warned that California would be overrun by yellow-skinned “Mongolians” if Section One were adopted. 

Conness responded that all children born on this land were entitled to the same treatment under law as everyone else.  Bigotry and class status was no longer to be tolerated.  Despite Cowan’s fears, Section One was adopted by 2/3rds of each house and 3/4^ths of the voting states and become part of our fundamental law.

The debate between Conness and Cowan proves beyond doubt that everyone understood what Section One would mean if adopted: all children, even those born of the most detested and feared immigrant parents, would be American citizens if born on American soil.  If the Court considers the Original Intent of the drafters of Section One or Original Understanding of those who voted on it, the Conness – Cowan debate proves conclusively that Section One means birthright citizenship for all born on this land under this flag.

The case will be argued in the Supreme Court on April 1, and our counsel intends to be present for the argument.

John Conness’s story has a Boston twist.  Conness was forced out of the Senate in 1869 because of his support for Chinese immigrants and for birthright citizenship under the 14^th Amendment.  He left California in 1869 and moved to Dorchester where he lived with his second wife, Mary Russell Davis, and their children until he died in Jamaica Plain in 1909.  His house on River Street is now owned by the City of Boston.

Link to Full Amici Curiae Brief