Citizenship, then and now, was the right to have rights\u2014to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to \u201cevery free-born person in this land.\u201d \u2026 We keep that promise today.<\/p>\n
The President\u2019s order, \u201cProtecting the Meaning and Value of American Citizenship,\u201d sought<\/a> to prospectively deny citizenship to the American-born children of unlawfully or temporarily present parents. And it did so by announcing a narrow understanding of the Citizenship Clause of the U.S. Constitution\u2019s Fourteenth Amendment.<\/p>\n The Constitution itself is laconic: \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 It is the second qualification of the Citizenship Clause\u2014 \u201csubject to the jurisdiction\u201d\u2014that the President\u2019s order purported<\/a> to interpret and enforce.<\/p>\n And it is to that qualification that most of the Court\u2019s pages were devoted. Chief Justice Roberts wrote<\/a> for the five-person majority\u2014including Justices Amy Coney Barrett, Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor\u2014and concluded that the order violated the Citizenship Clause. Justice Jackson wrote<\/a> further, joined partially by Sotomayor, to challenge the principal dissent. Justice Brett Kavanaugh disagreed<\/a> on the constitutional question, arguing instead that the order was unlawful under the Immigration and Nationality Act<\/a>, which uses the same language as the Citizenship Clause. Justice Clarence Thomas wrote<\/a> the principal dissent, joined by Justice Neil Gorsuch. Justices Samuel A. Alito, Jr., and Gorsuch also wrote separately.<\/p>\n Both as a historical and originalist matter, the Court was, in our view<\/a>, correct. But this case tested both history and originalism. During oral argument, Solicitor General D. John Sauer<\/a> urged<\/a> the justices to remember that we now live in a \u201cnew world.\u201d Chief Justice Roberts rejoined<\/a>, calmly, \u201cWell, it\u2019s a new world. It\u2019s the same Constitution.\u201d Pithy as it may be, the comment did not generate much agreement about the Constitution.<\/p>\n In a decision of this length, it might be best to begin where everyone agrees. As Chief Justice Roberts explained<\/a>, the Citizenship Clause overturned Dred Scott v. Sandford<\/a>, the \u201codious decision\u201d of 1857 that read into the Constitution \u201can unexpressed (and atextual) racial component\u201d to the words \u201cpeople of the United States\u201d and \u201ccitizen.\u201d Whether the Citizenship Clause only related to the citizenship of new freedmen or went further is disputed by the various opinions in Trump v. Barbara, particularly those of Justices Thomas and Jackson, respectively.<\/p>\n Most justices also agreed that the Citizenship Clause did not categorically deny birthright citizenship to the children of all people temporarily or unlawfully in the United States. As a facial challenge to the entirety of the order, Justice Thomas reminded<\/a> his colleagues that \u201cthe plaintiffs bear the burden to show that all applications of the Order are unlawful.\u201d Justice Thomas, who interpreted the Citizenship Clause to require<\/a> \u201cdomicile,\u201d would \u201creserve for another day the question whether the children of illegal aliens can be domiciled here.\u201d Justice Gorsuch, agreeing<\/a> with Thomas, saw some lawful applications of the order. He added<\/a>, however, that \u201ca child born here to parents who have long chosen to make this Nation their permanent home\u201d may well be natural born citizens. Alternatively, Justice Alito interpreted<\/a> the Citizenship Clause to exclude all children who would have dual or competing allegiances. Consequently, many children whose parents\u2019 home countries did not impose the rights and duties of citizenship upon them would be citizens. Justice Kavanaugh, finally, would have recognized<\/a> an exception to birthright citizenship. He understood the Clause to likely exclude citizenship for all \u201cchildren born to foreign citizens unlawfully or temporarily in the country.\u201d<\/p>\n The points of disagreement are many. Two predominate. First, the majority and dissents debated<\/a> whether the common law of England, with its \u201cfeudal\u201d history, is truly compatible with the American \u201csettler ethos\u201d and republican government. The dissents argued<\/a> that, because the English rule tied subjects to land and to a king, America could not have inherited the rule of birthright citizenship. We have written<\/a> extensively together, and both have written<\/a> separately<\/a>, about the common law\u2019s relationship to citizenship. The inheritance of this common law tradition, as of many common law inheritances, is real, although it was modified to allow for American citizens to lawfully abjure or renounce citizenship. In England, the feudal rule remained that no birthright subject could expatriate himself. The dissents have<\/a> much to say about how common law was antithetical to American ideals, but less to counter the contemporaneous evidence that the founding generation and ratifiers of the Fourteenth Amendment understood themselves to be maintaining a specific common law rule.<\/p>\n Second, and most importantly, the majority and dissents disagreed<\/a> about the meaning of \u201csubject to the jurisdiction.\u201d The majority argued<\/a> that the Citizenship Clause sought and was understood at the time of adoption to mirror and reinstate the common law that had been eclipsed by Dred Scott. At common law, Chief Justice Roberts explained<\/a>, a child must both be born within the territory and subject to the sovereign\u2019s governing power: \u201cThe Citizenship Clause uses jurisdiction in its ordinary sense\u2014referring to the power of the United States to govern those within its territory.\u201d He added that Wong Kim Ark v. United States<\/a>, the key early case interpreting the clause, concurred. To the majority, a parent\u2019s status has<\/a> nothing to do with jurisdiction exerted over children. Arguments suggesting otherwise were<\/a> both \u201crevisionist\u201d and wrong.<\/p>\n In Justice Kavanaugh\u2019s view, \u201csubject to the jurisdiction\u201d meant<\/a> to capture well-known exceptions to birthright citizenship, such as Native Americans, ambassadors, and enemy armies. Justice Kavanaugh would have rejected<\/a>\u2014and thus disagreed with the majority\u2014that there was ever a \u201cclosed set\u201d of exceptions to the birthright rule. For him, what is closed for the Constitution are \u201cits principles.\u201d Kavanaugh reasoned<\/a> that \u201cthe original constitutional principles do not change absent a constitutional amendment, but the relevant principles\u2014both the rules and exceptions alike\u2014must be faithfully applied.\u201d And the \u201conly apparent principle unifying the four disparate exceptions \u2026 especially in light of the exception for tribal American Indians\u2014is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations.\u201d Kavanaugh compared<\/a> this approach to the Court\u2019s Second and First Amendment jurisprudence, but commentators were quick to point out<\/a> potential nonoriginalist implications.<\/p>\n In examining the phrase \u201csubject to the jurisdiction,\u201d Justices Thomas and Gorsuch leaned<\/a> into a concept found commonly in the realm of civil procedure: \u201cA person was subject to the jurisdiction,\u201d Justice Thomas explained, \u201cof the government of his domicile.\u201d And while it had many historic meanings, the \u201cmost common definition of domicile was residence with the intent to permanently remain.\u201d Domicile impacted which governments may tax individuals and which marriage and property-law regimes applied to individuals, and it triggered various other mechanisms that tightened the relationship of a state or government and an individual. Justice Thomas argued<\/a> that \u201cthe Citizenship Order is not facially unconstitutional \u2026 at least insofar as it applies to children born to parents, here lawfully or unlawfully, who are not domiciled in the United States.\u201d<\/p>\n For Justice Alito, finally, the Fourteenth Amendment confers<\/a> \u201ccitizenship on only those children who, at birth, owe allegiance solely to this country.\u201d Interpreting the Civil Rights Act of 1866<\/a> and the post-ratification history of the Fourteenth Amendment, he concluded<\/a> that \u201csubject to the jurisdiction\u201d means a kind of exclusive jurisdiction, a jurisdiction \u201cnot in any way limited by any power possessed by any foreign country.\u201d Therefore, if a child\u2019s parent\u2019s country would claim the child as a national, such as under a jus sanguinis<\/a> regime, in which citizenship derives from one\u2019s parents\u2019 citizenship rather than birthplace, that child would be denied citizenship by the Constitution.<\/p>\n These disagreements raise critical methodological questions for the historically minded lawyer and judge. The majority raised<\/a> the alarm that the dissents rested upon \u201cfundamentally revisionist scholarship.\u201d Justice Thomas chided<\/a> the majority for not properly dispensing with the evidence \u201cthat it characterizes as a revisionist project.\u201d However these and other methodological snags might be best resolved, the implications are clearly dramatic.<\/p>\n ![\"Benjamin](\"https:\/\/www.newsbeep.com\/us\/wp-content\/uploads\/2026\/07\/keener.jpg\")
![\"Keith](\"https:\/\/www.newsbeep.com\/us\/wp-content\/uploads\/2026\/07\/whittington.jpg\")
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