{"id":395589,"date":"2026-07-12T12:44:10","date_gmt":"2026-07-12T12:44:10","guid":{"rendered":"https:\/\/www.newsbeep.com\/us-ca\/395589\/"},"modified":"2026-07-12T12:44:10","modified_gmt":"2026-07-12T12:44:10","slug":"on-birthright-citizenship-supreme-court-originalists-are-split","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us-ca\/395589\/","title":{"rendered":"On birthright citizenship, Supreme Court ‘originalists’ are split"},"content":{"rendered":"\n

WASHINGTON \u00a0\u2014\u00a0The Supreme Court\u2019s conservative justices say they decide cases based on the words and original history of the Constitution \u2014 and not on their personal or political views<\/a>. <\/p>\n

Following the lead set by the late Justice Antonin Scalia, they say they see history and \u201coriginalism\u201d as a guiding principle to prevent judges from changing the Constitution to adjust to new and changing times.<\/p>\n

This text-and-history approach is said to contrast with an evolving or \u201cliving Constitution\u201d favored by progressives and liberal activists. <\/p>\n

But this year saw a flip of sorts on birthright citizenship. <\/p>\n

The foremost conservatives agreed with President Trump that the surge of illegal immigration called for reconsidering the promise of citizenship at birth set out in the 14th Amendment of 1868.<\/p>\n

\u201cThe number of illegal immigrants in this country exploded\u201d in recent years, Justice Samuel A. Alito Jr. wrote in dissent. The rule of citizenship at birth provides \u201ca powerful incentive to enter or remain in this country illegally,\u201d he added.<\/p>\n

\u201cThe Constitution is an enduring document,\u201d wrote Justice Brett M. Kavanaugh, but its rules and meaning must adjust to \u201cmodern situations that were unknown or unanticipated by the Constitution\u2019s Framers.\u201d <\/p>\n

In a concurring opinion, he said that \u201csignificant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868.\u201d<\/p>\n

There were no federal immigration laws in the mid-19th century, but it was an era when a surge of Irish immigrants had settled on the East Coast and large numbers of Chinese immigrants came to California.<\/p>\n

Under the law, their children were deemed to be citizens at birth.<\/p>\n

Among the conservative originalists, only Justice Amy Coney Barrett signed the majority opinion<\/a> that was written by Chief Justice John G. Roberts Jr. and joined by the three liberals. <\/p>\n

The opening words of the 14th Amendment of 1868 say: \u201cAll persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.\u201d<\/p>\n

In 1898, the Supreme Court upheld the rule of citizenship at birth in the case of Wong Kim Ark<\/a>, who was born in San Francisco to Chinese parents. <\/p>\n

In an executive order, Trump proposed to end birthright citizenship for the newborns whose parents were in the country illegally or temporarily. <\/p>\n

Writing for the court, the chief justice said the words of the 14th Amendment were clear and were clearly understood at the time. He dismissed the \u201cdramatically revisionist view\u201d that has been cited recently. <\/p>\n

Kavanaugh voted with the majority to block Trump\u2019s order from taking effect. He did so because Congress had adopted birthright citizenship in a 1952 law. <\/p>\n

\u201cConsistent with the 14th Amendment, Congress could … enact new legislation establishing exceptions to birthright citizenship,\u201d he wrote. <\/p>\n

Justices Clarence Thomas and Alito wrote long dissents arguing that the framers of the 14th Amendment did not or would not have favored birthright citizenship. <\/p>\n

They pointed to recent scholarship by law professors that raised questions about the accepted understanding of the 14th Amendment and the citizenship rule. <\/p>\n

Thomas said citizenship of the child should turn on whether the parents were \u201cdomiciled\u201d in this country. Black people who were enslaved were undoubtedly domiciled here, but the same is not true of temporary visitors. <\/p>\n

Justice Neil M. Gorsuch agreed in part with Thomas and questioned whether the newborns of temporary visitors should be deemed as citizens at birth. <\/p>\n

Many court commentators were surprised by the close 5-4 divide on the constitutional issue. <\/p>\n

\u201cGiven how clear the language was, I expected it to be 7 to 2,\u201d said Melissa Murray, a New York University law professor. \u201cI really gasped when I saw it was 5-4. This is not settled. We\u2019re not done with this debate.\u201d<\/p>\n

Sarah Isgur, a podcaster and SCOTUSblog analyst, said that \u201coriginalism is getting more and more muddled. Either the history matters or it doesn\u2019t.\u201d<\/p>\n

However, she agreed with Kavanaugh\u2019s approach of leaving it to Congress to reconsider the issue.<\/p>\n

Not all originalists are conservative.<\/p>\n

Yale Law Professor Akhil Amar, a constitutional historian, argued that the history of birthright citizenship is clear and not subject to revisionist thinking. He said the Reconstruction Congress adopted this principle of citizenship at birth and stated their intent in clear words in the 14th Amendment. <\/p>\n

\u201cWhen a baby is born on American soil and an American flag flies above, that baby is a birthright citizen, as the Reconstruction Republicans across the land understood,\u201d he wrote in February. This rule \u201chas virtually nothing to do with the baby\u2019s parents.\u201d<\/p>\n

Last week, he was mostly cheered by the court\u2019s ruling.<\/p>\n

\u201cIt\u2019s a triumph, but it should have been 9-0,\u201d Amar said on a review of the court term sponsored by SCOTUSblog. \u201cShame on the dissenters. They didn\u2019t even the address the statute\u201d and its wording. <\/p>\n

But the majority led by Roberts \u201cclearly affirmed the plain meaning of the constitutional text and its history. And that\u2019s a win,\u201d he said. <\/p>\n

History has a recurring role at the Supreme Court. <\/p>\n

Isgur noted the court will hear arguments in the fall on whether the 2nd Amendment of 1791 gives gun owners a right to have \u201cassault weapons\u201d like AR-15 rifles. <\/p>\n

She said the court will decide then between history and changed circumstances. <\/p>\n

At issue is whether these modern rapid-fire rifles fit within the history of the gun rights protected by the 2nd Amendment or instead represent a new and dangerous threat to public safety that was unknown in 1791. <\/p>\n

Scalia\u2019s opinion upholding gun rights in 2008<\/a> is often cited as a model of originalism, but it too emerged from a court divided 5-4. <\/p>\n

The 2nd Amendment says, \u201cA well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bears Arms, shall not be infringed.\u201d<\/p>\n

For decades, the Supreme Court had all but ignored the 2nd Amendment, viewing it as a somewhat outdated provision involving militias, akin to the 3rd Amendment. It forbids having soldiers \u201cquartered in any house … in time of peace.\u201d<\/p>\n

Four liberal dissenters in 2008 said the court should stand by that understanding of history. <\/p>\n

Justice John Paul Stevens said the 2nd Amendment was added to the Constitution to protect state militias from federal interference. Moreover, the reference to \u201cbear arms\u201d suggests it was about militias, he said.<\/p>\n

But Scalia\u2019s opinion stands as the landmark precedent, and he said the dissenters had the history all wrong. <\/p>\n

The right to have guns for self-defense arose in England and came to the American colonies. \u201cBy the time of the founding, the right to have arms had become fundamental for English subjects,\u201d he wrote. <\/p>\n

The 2nd Amendment did not establish a new right, he said. Rather, it \u201ccodified a pre-existing right [of] having and using arms for self-preservation and [defense],\u201d he wrote.<\/p>\n

\u201cThere seems to us no doubt, on the basis of both text and history,\u201d Scalia wrote, \u201cthat the 2nd Amendment conferred an individual right to keep and bear arms.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"WASHINGTON \u00a0\u2014\u00a0The Supreme Court\u2019s conservative justices say they decide cases based on the words and original history of…\n","protected":false},"author":2,"featured_media":395590,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[27],"tags":[47958,71691,3333,47642,159063,1765,1752,27304,7363,3622,418,48,52,51,47,50,49,159064,15157,20460,2214],"class_list":["post-395589","post","type-post","status-publish","format-standard","has-post-thumbnail","category-los-angeles","tag-14th-amendment","tag-2nd-amendment","tag-birth","tag-birthright-citizenship","tag-chinese-parent","tag-citizen","tag-congress","tag-constitution","tag-country","tag-court","tag-history","tag-la","tag-la-headlines","tag-la-news","tag-los-angeles","tag-los-angeles-headlines","tag-los-angeles-news","tag-originalist","tag-right","tag-rule","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts\/395589","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/comments?post=395589"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts\/395589\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/media\/395590"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/media?parent=395589"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/categories?post=395589"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/tags?post=395589"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}