Birthright Citizenship Before the Court: The Honest Constitutional Argument

What the Court Is Actually Being Asked

The Supreme Court is taking up Trump's executive order restricting birthright citizenship, and the commentary from both sides has been approximately as honest as you'd expect — which is to say, not very.

Let me try to do better.

The Fourteenth Amendment reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The Trump administration's argument is that "subject to the jurisdiction thereof" excludes children born to parents who are present in the United States illegally, on the grounds that such parents are not fully subject to American jurisdiction in the relevant legal sense.

That's a serious argument. It is not, as some conservative commentators have claimed, the obvious reading of the text. It is also not, as some liberal commentators have claimed, a frivolous one. The honest answer is that the phrase "subject to the jurisdiction thereof" was understood at the time of the Fourteenth Amendment's ratification to exclude children born to foreign diplomats and to members of Native American tribes who maintained separate legal sovereignty. Whether it excludes children of undocumented immigrants is a question the Supreme Court has never squarely resolved. United States v. Wong Kim Ark (1898) addressed the children of legal resident aliens, not unauthorized entrants.

The Originalist Case and Its Limits

The strongest version of the administration's argument is the originalist one: that the drafters of the Fourteenth Amendment, operating in an era before modern immigration law, did not contemplate birthright citizenship for the children of people who had entered the country in violation of law — because no such category of people existed in law at the time.

This is a legitimate originalist observation. The Civil Rights Act of 1866, which the Fourteenth Amendment was designed to constitutionalize, was focused on freed slaves and their descendants. Senator Lyman Trumbull, one of the amendment's principal architects, explained "subject to the jurisdiction" as meaning "not owing allegiance to anybody else." The question of whether unauthorized immigrants owe allegiance to the United States in the relevant sense is at least arguable.

But originalism isn't a magic pass. The originalist argument requires not just that the Framers didn't contemplate the present situation but that their understanding, properly extended, excludes it. That extension is contested. Senator Jacob Howard, who introduced the citizenship clause on the Senate floor, used language that most scholars read as broad — "all persons born within the limits of the United States." The legislative history doesn't cleanly resolve the ambiguity.

And then there is the practical dimension that pure constitutional analysis tends to skip over: the United States has operated under the broad reading of birthright citizenship for 128 years. Hundreds of millions of Americans have organized their lives, their families, their legal status, and their property rights around that understanding. The reliance interest is staggering. Courts factor that in. They should.

What the Court Should Do — And What It Probably Will

I'll say what I think rather than hiding behind "reasonable people disagree."

The Court should rule narrowly. The executive order is almost certainly unconstitutional as written, because executive orders cannot modify constitutional provisions. If the administration wants to change the interpretation of the Fourteenth Amendment's citizenship clause, it needs either a constitutional amendment or a Supreme Court ruling overturning the longstanding interpretive consensus. An executive order doesn't accomplish either.

What I think the Court will do is rule on standing and the preliminary injunctions without reaching the underlying constitutional merits — a classic move that lets the justices dispose of the immediate case without committing to the harder question. That would be judicially cautious and practically unsatisfying. It would leave the constitutional question unresolved and the political fight running indefinitely.

The harder question — whether the Fourteenth Amendment actually requires birthright citizenship for children of unauthorized entrants — deserves a direct answer from the Court eventually. The textual and historical arguments against the broad reading are not frivolous. They have been made by serious constitutional scholars, including some who are not sympathetic to Trump's politics. A Court that takes originalism seriously should engage with them seriously, which means neither endorsing the executive order nor dismissing the underlying argument without analysis.

I grew up the son of a Nigerian immigrant who went through every legal step to become an American citizen. He did it the hard way, the right way. He believed in the system. I still do. Which is why I want the Court to engage with this question honestly rather than politically — because the honest answer, whatever it turns out to be, is the only one the country can actually live with.