by Joseph DeMaio, ©2026
(Aug. 22, 2026) — INTRODUCTION
The recent SCOTUS decision in Trump v. Barbara – holding, among other things, that if born here on U.S. soil, the child of an illegal alien or a foreigner unlawfully present here is nonetheless a U.S. citizen – continues to produce fallout. While technically not radioactive, the fallout is nonetheless unhealthy to the continued wellbeing of the Republic. If you doubt that, just read the dissenting opinions of Justices Thomas and Alito and the partial dissent of Justice Kavanaugh.
Your humble servant has addressed the decision and the shortcomings of the majority opinion here. The following offering will take a slightly “deeper dive” into the potential impact of the decision on future scholarship and analysis of the relationship between a “citizen” for 14th Amendment purposes, post-Barbara, and a “natural born Citizen” (“nbC”) as understood and adopted by the Founders in Art. 2, § 1, Cl. 5 of the Constitution itself, the “Presidential Eligibility Clause.”
While the Barbara decision addresses who may constitute a U.S. “citizen” under the 14th Amendment, it is a long way from being determinative of what the Founders considered to be an “nbC” when the Constitution was drafted, adopted and ratified “back in the day.” Stated otherwise, while the 14th Amendment “citizen” and Eligibility Clause nbC issues are different, the two concepts are not totally unrelated. The Barbara majority opinion, erroneously focusing on the Court’s prior flawed decision in United States v. Wong Kim Ark (read the dissenting opinion of Chief Justice Fuller and concurring dissent of Associate Justice Harlan) ruled that the citizenship principle of jus soli (citizenship determined by the soil or place of birth) was what the Framers of the Fourteenth Amendment intended when using the phrase “subject to the jurisdiction [of the United States].” In so ruling, the Court rejected any role for the citizenship principles of jus sanguinis (citizenship by parental bloodline or descent),
The fallout from the ruling in Barbara, while facially affecting only the “citizenship” analysis for persons under the 14th Amendment, will undoubtedly be leveraged by those insisting that merely if one is a “citizen at/by/from birth” under jus soli principles, with no other qualifications, such will suffice to deem one an nbC for presidential eligibility purposes.
Respectfully, your humble servant begs to differ.
LEGAL ANALYSIS
Apart from the fact that the 14th Amendment – the sole issue before SCOTUS in its Barbara decision – was not in existence in 1787, it is beyond dispute that one of the primary – if not the sole – concerns of the Founders when drafting Art. 2, § 1, Cl. 5 of the Constitution, the nbC presidential Eligibility Clause, was to shield the office of the “Chief Magistrate,” eventually to become the Presidency, from both the actuality as well as the potential for the insinuation into it of “foreign influence.” Whether or not that remains a legitimate concern in 2026 – as opposed to 1787 – is a different question: when the Constitution was drafted, adopted and eventually ratified to become operational, that was their original concern. If that is to change, a constitutional amendment is required.
Your servant has also addressed the nbC issue in the context of a law review article published in 2015 titled “On the Meaning of Natural Born Citizen.” The article (addressed and critiqued here, here and here) was co-authored by two well-credentialed former Justice Department Solicitors General, Paul Clement (Solicitor General 2005-2008 under President George W. Bush) and Neal Katyal (Acting Solicitor General, 2010-2011 under President Obama). That article posited that an nbC was “a citizen at birth, with no need to go through a later naturalization proceeding.”
The article rejected – dismissively – any need for birth on U.S, soil, calling Senator Ted Cruz’s birth in Alberta, Calgary, Canada a purportedly irrelevant “happenstance” rather than an eligibility disqualifier. Their definition of an nbC additionally ignored dual parental U.S. citizenship altogether, claiming that the U.S. citizenship of the senator’s mother alone sufficed for nbC purposes, the senator’s father being a Cuban national at his birth. So much for the “place of birth alone” or “jus soli prevails” principle. The “dual parent” citizenship issue was disregarded, except with reference to the 1790 Naturalization Act (1 Stat. 103), which was repealed less than five years after its enactment by the 1795 Naturalization Act (1 Stat. 414). … continue reading at: https://www.thepostemail.com/2026/08/22/the-fallout-from-trump-v-barbara/
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The Citizenship Status of the U.S. Presidents and Their Constitutional Eligibility Status Under the U.S. Constitution, Article II, Section 1, Clause 5 – the Presidential Eligibility Clause: https://www.scribd.com/doc/302783665/Presidents-of-USA-Grandfathered-or-Natural-Born-Citizen-or-Frauds
CDR Charles Kerchner, P.E. (Retired)
Author: “Natural Born Citizen”
and “Kerchner v Obama – The Advertorial Campaign“
https://www.kerchner.com/books/catalog.htm
https://cdrkerchner.wordpress.com
https://www.scribd.com/user/52640192/protectourliberty/lists
http://www.protectourliberty.org
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