Citizenship is not a souvenir: Why Ho is the wrong justice for this moment

American citizenship is a sacred bond between an individual and a nation, and not to be confused with a souvenir collected during a temporary visitor or a loophole through a plane ticket, a tourist visa, or a strategically timed hospital stay.

The Supreme Court is poised to rule on one of the most consequential constitutional questions of our era: whether the Fourteenth Amendment’s Citizenship Clause mandates birthright citizenship for the children of those present in the United States illegally or only temporarily.

As the nation awaits that ruling, President Donald Trump has publicly deliberated about Supreme Court openings and the future composition of the Court. One frequently discussed potential nominee, Judge James Ho of the Fifth Circuit, should be removed from consideration. His publicly stated views on birthright citizenship represent more than a legal disagreement, they reveal a rigid constitutional philosophy that is poorly suited to the moment confronting the country.

TRUMP ADMINISTRATION FACES TOUGH QUESTIONS ON BIRTHRIGHT CITIZENSHIP AT SUPREME COURT

Ho has not merely offered a passing comment on this topic. He has staked out an absolutist position with considerable force. In a 2006 law review article, he wrote that birthright citizenship “is protected no less for children of undocumented persons than for descendants of Mayflower passengers.” In interviews he even further, defending the same constitutional guarantee for the children of tourists which includes “maternity tourism.” This allows foreign nationals traveling to the U.S. specifically to give birth and secure American citizenship for their children.

Ho’s stance dismisses serious textualist and originalist arguments. The Heritage Foundation’s Hans von Spakovsky has argued compellingly that the phrase “subject to the jurisdiction thereof” has been fundamentally misread for generations. As von Spakovsky explains, the phrase’s original meaning refers to political allegiance, not mere physical presence within the borders of the U.S.

The late Sen. Lyman Trumbull, a principal architect of the Fourteenth Amendment, was explicit: “subject to the jurisdiction” meant owing no allegiance to any other country. That distinction matters. A foreign tourist may be required to obey American laws during a temporary stay, but that does not automatically establish the complete allegiance that citizenship demands.

The notion that the child born to a tourist who travels to California to deliver a baby and then returns to Shanghai is constitutionally entitled to American citizenship would have struck the amendment’s framers as an absurdity.

The Constitution should not be interpreted to convert a temporary visit into a permanent claim on the American birthright.

The debate over birthright citizenship is not merely an exercise in textual interpretation. It is a proxy for a far larger argument about whether American institutions will adapt to the demands of the 21st century or remain frozen in interpretations forged in a different era and exploited by the rest of the world.

That question sits at the heart of Trump’s political rise. For years, the political class treated every abuse of America’s generosity as the unavoidable cost of compassion. Trump understood that a country unwilling to defend the value of its citizenship will eventually cheapen it.

That is why Ho’s fitness for the current moment deserves scrutiny. His absolutism on the question suggests that no factual record, modern abuse, or competing originalist argument could move him.

The deeper problem is what absolutism reveals. Ho’s position would treat the child of a foreign national who travels to the United States for the specific purpose of giving birth, secures an American passport for the child, and promptly returns home as constitutionally indistinguishable from the child of a family that has built its life in this country.

This is a profound disagreement about the meaning and value of American citizenship.

Trump has been ridiculed by some for pressing this issue. But he grasps something his critics do not: The legitimacy of American institutions depends on their responsiveness to the common sense of the American people.

A justice must examine the text, confront the history, understand the real-world consequences, and possess the judgment to distinguish a constitutional protection from an exploited loophole.

A Supreme Court that permits maternity tourism to confer automatic citizenship and allows foreign nationals to exploit a constitutional provision has lost its connection to the people it serves.

READING (AND MISREADING) THE 14TH AMENDMENT

The next justice must understand that sovereignty is not cruelty, borders are necessary, and citizenship is not a participation trophy awarded to anyone who can reach an American delivery room.

America has every right to define the terms of its citizenship and defend the value of the American birthright. Ho, whatever his other merits, has already shown that he is the wrong justice for this moment.

Mehek Cooke, an attorney and political strategist, was a surrogate for the Trump for President Campaign and the Republican National Convention. She is a senior national security and legal analyst for the Daily Signal.