{"id":556790,"date":"2026-03-31T20:08:08","date_gmt":"2026-03-31T20:08:08","guid":{"rendered":"https:\/\/www.newsbeep.com\/us\/556790\/"},"modified":"2026-03-31T20:08:08","modified_gmt":"2026-03-31T20:08:08","slug":"birthright-citizenship-shouldnt-be-up-for-debate","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us\/556790\/","title":{"rendered":"Birthright Citizenship Shouldn\u2019t Be Up for Debate"},"content":{"rendered":"

You\u2019re reading\u00a0The Briefing, Michael Waldman\u2019s weekly newsletter. Click\u00a0here<\/a>\u00a0to receive it in your inbox.<\/p>\n

On Wednesday, the Supreme Court will hear a major constitutional case about birthright citizenship. We shouldn\u2019t be debating this right now. But since the president chose to act with such striking disregard for the law, here we are.<\/p>\n

Birthright citizenship is in the Constitution. The first sentence of the 14th Amendment reads, \u201cAll 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.\u201d\u00a0<\/p>\n

This has been the law for more than 150 years<\/a>. 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\u2019s 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.<\/p>\n

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.<\/p>\n

This is open and shut. Con law for dummies.\u00a0<\/p>\n

Grasping for arguments, Trump\u2019s lawyers landed on this: The 14th Amendment\u2019s \u201cone pervading purpose\u201d 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\u2019s historical fan fiction, designed to appeal to an \u201coriginalist\u201d Court.<\/p>\n

Historians Martha Jones and Kate Masur, a member of the Brennan Center\u2019s Historians Council, corrected the record in a key amicus brief<\/a>. \u201cWhen the Framers wrote birthright citizenship into the Constitution, they were not addressing only the status of former slaves,\u201d they explained. \u201cThey 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.\u201d What\u2019s more, the historians note, \u201cThe Framers well understood that the Amendment\u2019s broad terms would recognize and protect the citizenship status of the children of immigrants.\u201d<\/p>\n

One echo throughout history: We\u2019ve seen the arguments against birthright citizenship before, and they were born of nativism<\/a> and made by racists. In our Countering Originalism<\/a> handbook, we call this a \u201cnegative precedent.\u201d \u201cNegative,\u201d as in \u201creally ugly.\u201d<\/p>\n

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.\u00a0<\/p>\n

It\u2019s an open-and-shut case, as I said. So why is this case happening at all?\u00a0\u00a0<\/p>\n

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.\u00a0<\/p>\n

Trump didn\u2019t dare do this during his first term. But after his \u201cshock and awe\u201d 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 \u201cpuzzle\u201d to solve. \u201cTrump might have a case on birthright citizenship,\u201d they found a way to write<\/a>.\u00a0<\/p>\n

\u201cA lot of people, when Trump first started talking about it, thought this is crazy,\u201d conservative scholar John Yoo told<\/a> The New York Times. Yoo thought Barnett and Wurman\u2019s argument too, ahem, tortured<\/a>, and instead made<\/a> \u201cthe originalist case for birthright citizenship.\u201d The vast majority of scholars agree.<\/p>\n

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.\u00a0<\/p>\n

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.<\/p>\n

As for birthright citizenship, it is one of the crown jewels of the U.S. Constitution. For a century and a half, the nation\u2019s promise was that anyone born here, however humble their circumstances, is an American. Let\u2019s hope the Court upholds that cherished principle. And let\u2019s shake our heads at the fact that it has to.<\/p>\n","protected":false},"excerpt":{"rendered":"You\u2019re reading\u00a0The Briefing, Michael Waldman\u2019s weekly newsletter. Click\u00a0here\u00a0to receive it in your inbox. On Wednesday, the Supreme Court…\n","protected":false},"author":2,"featured_media":556791,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[18],"tags":[23,3,21,19,22,20,25,24],"class_list":["post-556790","post","type-post","status-publish","format-standard","has-post-thumbnail","category-united-states","tag-america","tag-news","tag-united-states","tag-united-states-of-america","tag-unitedstates","tag-unitedstatesofamerica","tag-us","tag-usa"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/556790","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/comments?post=556790"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/556790\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media\/556791"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media?parent=556790"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/categories?post=556790"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/tags?post=556790"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}