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On Wednesday, the Supreme Court will hear a major constitutional case about birthright citizenship. We shouldn’t be debating this right now. But since the president chose to act with such striking disregard for the law, here we are.
Birthright citizenship is in the Constitution. The first sentence of the 14th Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
This has been the law for more than 150 years. The amendment overturned the notorious Dred Scott decision, which said that even free Black Americans could not be U.S. citizens. The Supreme Court in 1898 confirmed the 14th Amendment’s plain meaning. In United States v. Wong Kim Ark, it ruled that children born here are citizens, even if their parents are not. That principle gave rise to generations of new Americans.
Donald Trump tried to Sharpie this out of the Constitution. A few hours after he took office, he signed an executive order purporting to deny citizenship to the children born here to non-U.S. citizens. Courts immediately ruled against the White House. Last summer, the Supreme Court stopped individual judges from issuing such nationwide orders, but it left open the possibility of class action lawsuits. Hence Trump v. Barbara, brought by the American Civil Liberties Union.
This is open and shut. Con law for dummies.
Grasping for arguments, Trump’s lawyers landed on this: The 14th Amendment’s “one pervading purpose” was to protect the children of former slaves, not anyone else. That reading puts aside the clear language of the amendment, along with a century and a half of history and tradition. It’s historical fan fiction, designed to appeal to an “originalist” Court.
Historians Martha Jones and Kate Masur, a member of the Brennan Center’s Historians Council, corrected the record in a key amicus brief. “When the Framers wrote birthright citizenship into the Constitution, they were not addressing only the status of former slaves,” they explained. “They were also remedying the eight decades of injustice imposed upon free people born in the United States, among them free Black Americans, including those who had never been enslaved.” What’s more, the historians note, “The Framers well understood that the Amendment’s broad terms would recognize and protect the citizenship status of the children of immigrants.”
One echo throughout history: We’ve seen the arguments against birthright citizenship before, and they were born of nativism and made by racists. In our Countering Originalism handbook, we call this a “negative precedent.” “Negative,” as in “really ugly.”
Our constitutional rights in 2026 should not just have to rely on the goings-on during the 1860s, when the amendment was drafted. For 150 years, hundreds of thousands of children born in the United States to noncitizen parents have proudly grown up as American citizens.
It’s an open-and-shut case, as I said. So why is this case happening at all?
Because Trump is forcing the issue. And the case offers a depressing window into how the Supreme Court helps drive, ratify, and legitimize extremist arguments. It has fired up an originalist-industrial complex to concoct historical evidence to buttress unjustifiable outcomes.
Trump didn’t dare do this during his first term. But after his “shock and awe” barrage of executive orders at the start of his second term, conservative scholars suddenly had to find it plausible, intriguing, worth a second look. Two top professors, Randy Barnett and Ilan Wurman, suddenly discovered a “puzzle” to solve. “Trump might have a case on birthright citizenship,” they found a way to write.
“A lot of people, when Trump first started talking about it, thought this is crazy,” conservative scholar John Yoo told The New York Times. Yoo thought Barnett and Wurman’s argument too, ahem, tortured, and instead made “the originalist case for birthright citizenship.” The vast majority of scholars agree.
I think the Court is highly likely to reaffirm birthright citizenship. But who knows? I thought it likely the Court would allow criminal prosecutions of former presidents, which is similarly anticipated in the Constitution. Here, the case is even clearer, since the law has affected the lives of so many people before now.
The willingness to chuck aside precedent as well as logic is a hallmark of the Roberts Court. This term, we brace for a demolition of the Voting Rights Act, a further grant of vast power to presidents (this time allowing them to command expert federal agencies that were made independent by Congress), and another ruling to undermine campaign finance rules. The Court stood up to block the unilateral imposition of tariffs and has shown some backbone on other emergency powers cases. But overall, bit by bit, it continues its project to remake the country.
As for birthright citizenship, it is one of the crown jewels of the U.S. Constitution. For a century and a half, the nation’s promise was that anyone born here, however humble their circumstances, is an American. Let’s hope the Court upholds that cherished principle. And let’s shake our heads at the fact that it has to.
