Determining citizenship based on a birth certificate alone simplifies things immensely. Unfortunately, we no longer live in a world where that’s sustainable.

President Trump’s executive order interpreting the 14th Amendment’s “subject to the jurisdiction thereof” qualifier as not including people here illegally or on nonimmigrant visas may not succeed in changing current practice. In fact, I expect the Supreme Court, led by Chief Justice Roberts, will punt on the issue, pointing to Section 5 of the amendment, which says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” In other words, a law is required, not an executive order.

But whatever the immediate outcome, the president has already succeeded in bringing the citizenship question to the center of our political debate.

The constitutional and philosophical arguments against conferring citizenship automatically to anyone and everyone born on U.S. soil, as made by Edward Erler, John Eastman, and many others, are self-evidently correct. In guaranteeing the citizenship of newly freed slaves, the framers of the 14th Amendment certainly did not foresee mass illegal immigration—let alone the mass admission of tourists and foreign students—and the U.S.-born children resulting therefrom. They would have utterly rejected our practice of delegating the future make up of the political community to lawbreakers who have no right to be in the country, which makes a mockery of the very notion of self-government.

Despite its manifest defects, our longstanding practice of conferring citizenship on everyone born in the country (except for the children of foreigners with full diplomatic immunity) was manageable when numbers were low. Though no one put it quite this way, the downsides of the practice were outweighed by the advantage of simplicity, and the immense political and practical challenges of moving to a more modern system of determining citizenship.

The Key: Less Legal Immigration

It’s not as though the issue of automatic citizenship at birth hasn’t been raised previously in our politics. The late Senator Harry Reid, of all people, decried citizenship for the children of illegal aliens on the floor of the Senate in 1993, saying “no sane country” would countenance such a policy (a stance he later disavowed).

Reid’s legislation, and other bills like it over the years, went nowhere. But since he made that speech, the total foreign-born population has more than doubled, reaching the highest share of our population ever recorded, higher even than during the Ellis Island era. And the number of illegal immigrants has at least quadrupled.

Changed circumstances have turned a tolerable nuisance into a serious problem. Births to illegal aliens amounted to an estimated 7% of births nationwide in 2023—a number that would be at least 8%, and maybe more, if births to those here on nonimmigrant visas were added (that is, tourists, students, and workers). And births to illegal aliens as a share of the total is likely to be even higher in the next few years. This is due to the Biden Administration’s policies that shifted the illegal flow from single men to “family units” (at least one parent with at least one child). Close to three million aliens in family units were “encountered” at the border on Biden’s watch.

Given these enormous numbers, it is only natural for our citizenship practices to come under public scrutiny. But there is a danger that some political actors will exploit the issue not out of sincere concern for the different principles undergirding jus soli vs. jus sanguinis, but as yet one more way to focus attention away from the main problem—too much immigration.

We see a similar tendency in the effort to exclude illegal aliens (or even legal ones) from the census count for purposes of apportioning seats in the U.S. House of Representatives and the state legislatures. It is, of course, absurd that non-citizens, especially those here illegally, should have representation in Congress. Because non-citizens seldom vote (despite what you may have heard), their inclusion for purposes of apportionment of seats among the states, and drawing district boundaries, means that the votes of American citizens in places with lots of aliens count more than the votes of their fellow citizens in low-immigration areas.

This results in what are almost rotten boroughs. Consider Texas’s 33rd congressional district in the Dallas-Ft. Worth area, where 29% of adults are not citizens. It has 208,000 fewer voting-age citizens than Texas’s 21st congressional district, between Austin and San Antonio, where only 4% of adults are not citizens. Since each district has one congressman, the smaller number of citizens in Texas 33 have more say in their government than their fellow citizens in Texas 21. “One man, one vote” indeed.

The principled argument for excluding aliens, especially illegal ones, from the census count for apportionment is strong. But the practical obstacles are legion: the Constitution requires an “actual Enumeration” of “the whole Number of free Persons” every ten years. Is the Census Bureau to be expected to identify all the aliens among the whole number of free persons, with their addresses, and then subtract them from the count for purposes of representation? If this were possible, ICE could just go and arrest the illegal aliens among them.

Isn’t the more realistic approach simply to reduce immigration by properly enforcing the law and cutting legal immigration levels? The illegal population would shrink, more legal immigrants would become citizens, and over time the constitutional distortions caused by mass immigration would fade.

This is also the realistic solution to immigrant use of welfare. Half of immigrant-headed households use welfare, but efforts over the years “to build a wall around the welfare state” have failed. With an expansive system of social provision for the poor being an integral part of the modern state, it could not have been otherwise. Even if tightened up, as I and most of those reading this would likely prefer, the welfare state is never going away, so without reducing the number of immigrants, any other efforts to reduce immigrant welfare are bound to fail.

So it is with assimilation, security vetting, and competition with less-skilled workers—numbers are of the essence. Less immigration makes all these problems less acute, and easier to address.

This doesn’t mean abandoning efforts to modernize our citizenship practices. Cheap travel and communications mean there will be ever-greater numbers of foreigners coming here—even if, after we reduce permanent immigration, only as tourists and business travelers. That openness is a good thing, and in any case is difficult to avoid in the modern world. But such openness is not sustainable if birth tourism is still possible, and if foreign students or foreign consular officials (like the Turkish father of former Coke CEO Muhtar Kent) are able to exploit our laws to secure U.S. citizenship for their U.S.-born children.

It is essential to always keep in mind that our efforts to rectify the rules regarding citizenship (and apportionment and welfare and assimilation) are secondary to the main goal that ameliorates all these challenges—reduced immigration.