Birthright citizenship is a fundamental part of the 14th Amendment, but where did it come from? What were the original drafters of that amendment thinking when they wrote it? Why have we gone astray? And do we have a chance to set things right? Today's guest is John Eastman, Senior Fellow at the Claremont Institute and All Things Constitutional and Legal Scholar.
00:00:17.000Constitutional scholar, legal expert John Eastman to the show to talk about birthright citizenship.
00:00:22.000This is an issue that is going to be heating up and I believe is an open and shut constitutional case, but our country has gone afoul from that.
00:01:25.000He's done an amazing job building one of the most powerful youth organizations ever created, Turning Point USA. We will not embrace the ideas that have destroyed countries, destroyed lives, and we are going to fight for freedom on campuses across the country.
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00:02:27.000Now, first, before we get into birthright citizenship, which you have written extensively about, I think your writings on it are the most clear-minded.
00:02:41.000Please give us an update really quick.
00:02:58.000Well, you know, despite the resounding victory that President Trump was delivered by the American people back November, the left doesn't seem to have gotten the memo.
00:03:07.000They're still proceeding full force with the criminal indictments in Georgia and in Arizona.
00:03:13.000We're still dealing with the California bar attempt to disbar me.
00:03:17.000And, you know, I think the left, they're bound and determined to get people's scalps to scare other lawyers away from ever taking on clients or causes that the left disagrees with.
00:03:30.000This is a threat to our rule of law, our adversarial system of justice, our constitutional rights.
00:03:37.000And that's why I'm fighting it so hard.
00:03:39.000You know, and there's a new documentary movie about all this called The Eastman Dilemma, Lawfare or Justice.
00:03:45.000People can watch it for free right now before it goes up on the paid platforms just by going to EastmanDilemma.com.
00:03:53.000I hope people watch it and circulate it and have viewing parties with their friends and neighbors because people need to understand what's going on here.
00:04:02.000Well, I mean, we have your back 100%, John.
00:04:05.000And what they've tried to do to you is just unconscionable.
00:04:09.000And on behalf of a nation that is healing and I think ascendant once again, we, you know, we have your back and we're just, you know, I apologize on behalf of all of us, what you've had to endure.
00:04:21.000And you're a great American and we have your back.
00:05:03.000I want you to walk our audience through in the time we have with you.
00:05:07.000Why is the 14th Amendment, why should it not apply to illegals?
00:05:12.000Frankly, it should go further than that, but this executive order deals with illegal immigrants, the children they're of.
00:05:18.000So, make the case, explain the history, the floor is yours.
00:05:22.000Well, I think Senator Hiroma from Hawaii, on her tweet about this, indicates the problem.
00:05:30.000She eliminated the key words from the 14th Amendment.
00:05:33.000She said all persons born here are citizens.
00:05:35.000Well, the clause she omitted from that is all persons born in the United States and subject to the jurisdiction thereof are citizens.
00:05:44.000And so the fight is what that phrase means.
00:05:47.000And we don't have to speculate about it.
00:05:48.000The drafters of the language, the people that proposed the 14th Amendment, The folks who ratified it all understood it meant complete jurisdiction, not what they called mere territorial or partial jurisdiction.
00:06:00.000And if I can explain the difference with an analogy, suppose somebody from Great Britain is visiting the United States on a student visa or a work visa or just as a tourist.
00:06:09.000They're subject to our laws while they're here.
00:06:12.000That's subject to the territorial jurisdiction.
00:06:15.000But they don't owe allegiance to country.
00:06:17.000They're not subject to our more complete jurisdiction that was intended by that clause.
00:06:23.000We can't charge them with treason if they take up arms against us, although that would probably be a crime as well.
00:06:45.000My reading of those debates, the U.S. Supreme Court said the same thing in 1872 and 1884. The leading treatise writer of the day, Thomas Cooley, said exactly the same thing in his treatises in the 1870s.
00:06:59.000The Attorney General of the United States and formal Attorney General opinions for the State Department said the same thing in the 1880s.
00:07:09.000Children who were born here while their parents were temporarily visiting were not citizens.
00:07:53.000It clearly didn't go any further than that.
00:07:55.000It clearly doesn't address children of temporary visitors here, and it clearly doesn't address people who are here illegally in the first place.
00:08:04.000So Wong Kim Ark does not settle the question, as many are now claiming.
00:08:08.000Honest scholars for decades have recognized that.
00:08:11.000If it did settle the question and anybody born on the U.S. soil was a citizen, then why did Congress need to offer citizenship in the Indian Citizenship Act of 1924 to all Native Americans who were born on U.S. soil?
00:08:25.000The fact is they needed to do that under the naturalization power because they were not guaranteed citizenship under the 14th Amendment.
00:08:37.000I think President Trump's executive order is going to force the court to finally resolve that issue in the way that the framers of the 14th Amendment actually intended.
00:08:48.000I want to pause on this, the Native American piece of this, because I think this does not get enough play in this debate.
00:08:58.000Framers basically had a discussion about that of the 14th Amendment.
00:09:03.000There was a debate about this and they basically said of course they don't get citizenship.
00:09:08.000There was actually a debate of whether or not they needed to add more language and they basically said of course not because they're only partially under our jurisdiction.
00:09:17.000They owe allegiance to the tribal nations at the time.
00:09:24.000So the question then becomes why Would they not be automatically made citizens by the 14th Amendment when they were clearly born on American soil?
00:09:34.000And the answer lies in this distinction that you're making about partial versus complete jurisdiction, which is kind of a wonky in the weeds argument, but it makes all the difference in the world.
00:09:47.000And I think just looking on social media, I can tell that most of the rebuttals To these arguments, it's always like, well, of course they're subject to the jurisdiction of the United States.
00:09:59.000They're in the country, they're subject to our jurisdiction.
00:10:10.000The distinction between territorial jurisdiction and complete jurisdiction is what they intended.
00:10:15.000It's easy enough to understand for normal people.
00:10:18.000And that's what the 14th Amendment says.
00:10:21.000And by the way, you know, the notion that our leading enemies on the world stage, Russia with birth tourism in Miami, or China with birth tourism in Los Angeles, you know, put out 50 or 100. Charlie Kirk here.
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00:12:21.000So we have a whole category for legal citizenship, right?
00:12:24.000The babies born of that category is not as much as the babies of illegals.
00:12:28.000That's how big the problem has become.
00:12:30.000Right now, there are reports, especially within the Indian community, of mothers lining up for preterm C-sections to beat President Trump's February 20th cutoff date.
00:12:50.000France, New Zealand, and Australia have all abandoned birthright citizenship in the past few decades.
00:12:56.000Ireland was the last country in the European Union to follow the practice, and they ended it in 2005. So, they call it, you know the pronunciation better than I, but it's jus soli, which is kind of the old Latin term for it, the legal term.
00:13:12.000It was a tool that was used by colonialists.
00:13:16.000To incentivize settlers to the new world.
00:13:18.000That's why if you look at the map right now, most of the countries that have birthright citizenship are in the Western Hemisphere.
00:13:24.000But a little bit seedier version of that reading is that it was used to displace native populations in the new world.
00:13:33.000It was trying to bring settlers from the old world to the new to displace those people and to create a new civilization.
00:13:39.000They want to break the systemically racist cultural back of America is what they see of it.
00:13:45.000So my point to you is this is not some in the weeds thing.
00:13:49.000This is having a fundamental cultural, civilizational, legal impact.
00:15:40.000So the point that's very interesting here is that the 14th Amendment, during the debates, they say this is going to clarify this once and for all of who can be a citizen and who cannot be.
00:15:51.000And it's just amazing if you read back into the writings of that time.
00:15:56.000It's rather sparse, but they're very clear that, of course...
00:16:02.000Of course, this would not include people that owed allegiance to other nations, including Indians.
00:16:07.000It was specifically to right the wrong of slavery and the children born of slaves and to rectify that historic wrong.
00:16:14.000It was not to reward people who broke our laws.
00:16:18.000And I believe that the language is very clear in that.
00:16:20.000And I want to give you a chance to respond about...
00:16:22.000The 1866 Civil Rights Act, for example, attempting to codify the 1866 Civil Rights Act.
00:16:28.000So some people have made much of the fact that the language in the 66 Civil Rights Act more clearly bars The reason the language was changed is because the controversy over whether Native American tribes were foreign powers or domestic powers.
00:16:48.000So they changed the language to be not subject to the jurisdiction thereof to cover both domestic powers like Indian tribes and foreign powers.
00:16:57.000And that was all it was designed to accomplish.
00:17:00.000And there was a whole debate about this.
00:17:01.000Well, don't we also need to say, and Indians not taxed like we do with the 66 Civil Rights Act?
00:17:06.000And they said, no, that's already covered by the subject to the jurisdiction clause because they're not subject to the complete jurisdiction.
00:17:13.000And if you're not subject to the complete jurisdiction, this clause of the Constitution does not guarantee you automatic citizenship.
00:17:20.000Now, I want to I want to take this to our current day.
00:17:23.000Do you expect the current Supreme Court, including Amy Coney Barrett and all of this, will they support the president's EO or do you expect there to be a split court or ruling against this?
00:18:00.000They had exhibited their allegiance to this country as far as we let them go.
00:18:04.000And in a footnote in Dicta, in another case in the 1980s, they suggested that anybody born on the soil is subject to the jurisdiction there, is citizens.
00:18:15.000But they never grappled with the question in that case.
00:18:19.000So this will be the first opportunity for them to do so.
00:18:24.000Richard Posner in the Seventh Circuit out of Chicago some years ago, basically said, our reading of the 14th Amendment is right, and the government needs to get back on board with understanding what the amendment actually requires.
00:18:37.000Other leading scholars, not just me, but my colleagues at Claremont Institute, like Ed Erler and Tom West, But Yale law professor and political science professors, Roger Smith and Peter Shuck, I think Roger Smith is now at University of Pennsylvania.
00:18:52.000The late Lino Gralia at the University of Texas Law School.
00:18:55.000A number of very prominent scholars that have actually done the work and looked at the original understanding and look at the original documents and the original debates have all come to the same conclusion that birthright citizenship does not extend to people who are, to use the language of the day, Temporary sojourners, temporary visitors.
00:20:31.000But I don't think he would have had that ability.
00:20:35.000To do that, if he hadn't seen the true depth of depravity of the deep state in his first term, and then had an election stolen from him in his second term that just gained him the resilience and the tenacity to do the kind of things he's doing this past week.
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00:22:12.000Let's go through this Caroline Levitt presser.
00:22:15.000Let's just go ahead and play Cut 95. The first week that the president was in office, signed an executive order as it relates to birthright citizenship, trying to eliminate that.
00:22:26.000Now, 22 state attorney generals have said that this is unconstitutional.
00:22:33.000A federal judge has just agreed with their argument.
00:22:36.000What's the administration's argument for doing away with birthright citizenship?
00:22:41.000The folks that you mentioned have a right to have that legal opinion, but it is in disagreement with the legal opinion of this administration.
00:22:49.000This administration believes that birthright citizenship is unconstitutional, and that is why President Trump signed that executive order.
00:22:57.000Illegal immigrants who come to this country and have a child are not subject to the laws of this jurisdiction.
00:23:04.000That's the opinion of this administration.
00:23:06.000We have already appealed the rule, the lawsuit that was filed against this administration, and we are prepared to fight this all the way to the Supreme Court if we have to, because President Trump believes that this is a necessary step to secure our nation's borders and protect our homeland.
00:23:21.000Blake, I thought that was the appropriate place to start here, given the conversation with John Eastman.
00:23:26.000What's your take on President Trump and this administration's odds of success at the Supreme Court?
00:23:33.000You know, I have some friends who have clerked at the Supreme Court.
00:23:37.000All the Supreme Court justices have clerks.
00:23:39.000They're very important in the whole process of creating opinions, creating the rulings that they give.
00:23:45.000And they can give a lot of insight into how the Supreme Court works because it's a bit of a black box.
00:23:50.000And unfortunately, what they told me is they're skeptical on the birthright citizenship one.
00:23:56.000The line I heard was maybe like two votes is the most likely.
00:24:01.000And you're probably under 50% on the third vote, which they believed would be Gorsuch.
00:24:06.000So you're looking at a tough uphill battle.
00:24:10.000You're thinking, well, maybe Sotomayor will die or have to retire.
00:24:18.000Maybe you get that fifth vote from Gorsuch.
00:24:20.000But another thing that can be said is if this becomes a public debate, if you suddenly have it being made very clear that the new conservative consensus is This was wrongly decided.
00:24:33.000People will start writing the papers, giving the lectures, laying out the Constitution.
00:24:37.000Universal birthright citizenship is a misreading of the Constitution.
00:24:41.000And Supreme Court justices, it's not even saying they respond to public opinion.
00:24:46.000They're human beings, and they can be influenced by what the wider zeitgeist is, what the growing consensus is.
00:24:59.000It will also matter if they start getting clerks who have been raised in that sentiment in the Federalist Society and those groups that raise conservative guys.
00:25:08.000That said, overall, I don't think our odds are great, but it would be better for us to get an explicit Supreme Court ruling on this than to have the existing situation where we're just going off a 150-year-old Supreme Court decision that...
00:25:25.000Everyone is just taking for granted that it means this.
00:25:29.000Explicitly lay out the supposed reasoning because then that reasoning can be attacked.
00:25:33.000We can make it a new litmus test for future Supreme Court justices and so on.
00:25:41.000Let's go ahead and play cut 96. This White House believes strongly in the First Amendment.
00:25:48.000So it's why our team will work diligently to restore the press passes of the 440 journalists whose passes were wrongly revoked by the previous administration.
00:25:58.000We're also opening up this briefing room to new media voices who produce news-related content and whose outlet is not already represented by one of the seats in this room.
00:26:08.000We welcome independent journalists, podcasters, social media influencers, and content creators to apply for credentials to cover All right, so I'm going to respond to this.
00:26:20.000But, you know, I think this is massive, massive news.
00:26:25.000And as somebody that part of my job is working with mainstream news media, legacy news media, I, you know, for those who don't know, I serve as the spokesman for Turning Point when Charlie's not available or chooses not to participate.
00:26:38.000So I have to interact with these people a lot.
00:26:41.000And I will just tell you that there is a...
00:26:44.000Huge amount of them that are wildly unimpressive and that have their jobs simply because they've climbed through a pecking order and towed the party line.
00:26:55.000For example, you have to call January 6th an insurrection at some of these outlets.
00:27:02.000You have to say that the 2020 election was the most secure election in the history of elections.
00:27:08.000These are things that they are forced To say in print or on air at many of the legacy news media outlets.
00:27:15.000That is wildly out of step with the people that just elected Donald Trump as their 47th president.
00:27:20.000So there is a fundamental disconnect between the people and the news agencies and the news outlets that are allowed into that room, or at least historically.
00:27:30.000Caroline Levitt is blowing up an old paradigm.
00:27:59.000Yes, she has a POV, but don't for a second think that these other journalists don't have a POV because they are absolutely water holders of the regime media.
00:28:07.000They have been an enemy of the people because they have been an enemy of truth.
00:28:11.000Now, I'm not saying they need to be arrested.
00:28:14.000Some of you in the audience will disagree with me on that.
00:28:16.000I'm simply saying that it is time for the scales of coverage and justice and truth to be rebalanced.
00:28:23.000And this is a fundamental step in the right direction.
00:28:39.000Well, that is a sleight of hand trick that they use to make you feel compassion for people that broke our laws and are not here under our welcome.
00:28:53.000How many have a criminal record versus those who are just in the country illegally?
00:28:57.000All of them, because they illegally broke our nation's laws and therefore they are criminals as far as this administration goes.
00:29:02.000I know the last administration didn't see it that way, so it's a big culture shift in our nation to view someone who breaks our immigration laws as a criminal, but that's exactly what they are.
00:29:10.000Blake, your thoughts on Caroline's mic drop moment.
00:29:15.000Pretty cut and dry, as I would see it.
00:29:17.000It gets at the most appealing thing about this early administration.
00:29:30.000We're going to do this blitzkrieg, this shock and awe strategy.
00:29:33.000It's going to overwhelm the 24-hour news cycle's ability to keep up with it.
00:29:39.000But the other thing is just this total attitude shift.
00:29:42.000And for you or I, you know, we grew up in this very, we came of age in this very defeated late George W. Bush and then later McCain-Romney era where conservatives were very, they were very overawed rhetorically.
00:30:33.000And so I even, you know, I've said it behind, like, I think the Gulf of America thing is kind of silly, and I'm probably not going to call it that myself.
00:30:41.000But, like, the sheer cojones to make that push.
00:30:45.000We're like, yep, we're going to be renaming things because, you know, the left renames things all the time, and you guys all cheerlead it.
00:30:52.000It's this very aggressive posture that is the sort of thing that gets you wins.
00:30:58.000The more aggressive party in politics, Yeah, I think that's right, Blake.
00:31:05.000And I want to go back to what you just said, this assertive tone, this change.
00:31:09.000You saw this also with the J.D. Vance interview with Margaret Brennan at CBS over the weekend, where he said, you know, frankly, Margaret, I don't care.
00:31:18.000I don't give a damn with some of the memes that were coming out.
00:31:21.000Let's go ahead and play, I believe it was this cut, cut two.
00:31:24.000Well, Margaret, I don't agree that all these immigrants or all these refugees have been properly vetted.
00:31:29.000In fact, we know that there are cases of people who allegedly were properly vetted and then were literally planning terrorist attacks on our country.
00:31:37.000That happened during the campaign, if you may remember.
00:31:39.000So clearly not all of these foreign nationals have been properly vetted.
00:31:42.000No, but there are 30,000 people in the pipeline.
00:31:45.000But my primary concern as the Vice President, Margaret, is to look after the American people.
00:31:49.000And now that we know that we have vetting problems with a lot of these refugee programs, we absolutely cannot unleash thousands of unvetted people into our country.
00:32:11.000I don't want my children to share a neighborhood with people who are not properly vetted.
00:32:16.000And because I don't want it for my kids, I'm not going to force any other American citizens' kids to do that either.
00:32:21.000Well, it didn't have that line, but it was still very, very good.
00:32:23.000You know, Peachy Keenan, who's come on this show actually recently because her house almost burned down in Los Angeles, she made a really interesting point, Blake, about that look that legacy news media, that look that Margaret Brennan, where she kind of...
00:32:36.000It's just an elitist smug tone where they try and get in like a point and sneer at you.
00:32:41.000And it's basically like her observation, this is a look that these elitist journalists have been giving conservative politicians, leaders for a long time.
00:32:53.000And it basically says, you're so dumb, like you don't deserve to be here.
00:33:01.000And that's why I think this tone shift is so powerful.
00:33:04.000When we talk about what this is doing to the culture, we are seeing a re-emergence of this powerful masculine energy that wants to protect the country, and we won't be cowed by these women anymore.
00:33:17.000And just the sniping questions, all of that.
00:33:21.000And I think that will also be a boon from the way they've changed the White House...
00:33:27.000You know, the White House press briefings to incorporate more podcasters and the like.
00:33:31.000And, you know, what's funny is if you watch Joe Rogan interview someone, it actually often comes off as more professional than, you know, that weekend interview was.
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00:36:13.000The eggs thing, I think, is actually hilarious because I think it's a big self-own admitting that they are, in fact, losing on every single front.
00:36:22.000They're like, well, Trump's been in office for six, seven days, and he hasn't lowered the price of eggs.
00:36:28.000Like, I'm sorry, but if that's what you're clinging to and you spent the last four years defending how high the price of eggs has gone, I think you should sit this one out.
00:36:40.000Looks like, yep, clip 101. This is Caroline Levitt setting the record straight.
00:36:44.000Egg prices have skyrocketed since President Trump took office.
00:36:48.000So what specifically is he doing to lower those costs for Americans?
00:36:51.000Really glad you brought this up, because there is a lot of reporting out there that is putting the onus on this White House for the increased cost of eggs.
00:36:59.000I would like to point out to each and every one of you that in 2024, when Joe Biden was in the Oval Office, or upstairs in the residence sleeping, I'm not so sure, egg prices increased 65% in this country.
00:37:12.000We also have seen the cost of everything, not just eggs.
00:37:15.000Bacon, groceries, gasoline have increased because of the inflationary policies of the last administration.
00:37:22.000Well, and what she doesn't mention there is the fact that 100 million chickens were killed because of an outbreak of avian flu, bird flu.
00:37:37.000They're going to try and play gotcha games with her.
00:37:39.000But there's really no gotcha to be had.
00:37:41.000The price increase that you're seeing in eggs right now was a process set in motion by the previous administration, both inflationary pressures and spending, but also because a lot of birds have been killed that lay eggs.
00:38:00.000I would think there's some things we can do, but, you know, growing 100 million new and raising 100 new chickens to lay eggs is going to take a little bit of time.
00:38:08.000But, Blake, just react to the fact that their best thing, I mean, this is like Harry Sisson, that Parker kid, they're all posting about eggs online.
00:38:16.000They think it's like this big own on President Trump.
00:39:00.000Then they belatedly admitted it was happening and then passed a bill that they called the Inflation Reduction Act that did nothing to reduce inflation and was in fact a bunch of additional spending.
00:39:12.000The reason it worked on Biden was that everything in his terrible administration came together to force this giant inflation narrative.
00:39:21.000Whereas, okay, Trump, egg prices are going up.
00:39:24.000I suspect they will do their best to handle that, but it's not fitting into this wider epidemic of failure that was the Biden administration.