No question in American law has been more clearly or firmly settled than the question whether persons born in the United States are citizens of this country. The 14th Amendment states that “all persons born or naturalized in the United Statesand under its jurisdiction, is a citizen of the United States.”
“All people” means all of them people. And like the Supreme Court he reiterated Tuesdaythe amendment’s limited exception to people not “under the jurisdiction” of the United States refers only to a small group of people, such as the children of ambassadors, who are not bound by US law at all.
And yet, the decision to consider birth citizenship, known as Trump vs. Barbarait was only 5-4 — a surprising move that leaves the door open to further challenges if future nominees pull the Supreme Court to the right.
It is known that a total of six judges voted against President Donald Trump. When Judge Brett Kavanaugh did strange claims that the meaning of the Constitution has changed because “massive illegal immigration in the United States is a new phenomenon that was largely unknown in 1868,” ultimately concluding that federal law prevents Trump from revoking people’s citizenships.
Still, that’s four votes against reading the Constitution according to its unambiguous text. And it’s four votes to overturn Supreme Court opinions that have been on the books since the 19th century.
Barbara It is the most shocking decision that the Court has made since it announced it Trump is allowed to commit crimes in 2024. And, if not for Trump’s immunity decision, the dissenting justices’ opinion in Barbara it would be the biggest judicial attack on the rule of law since the Court upheld the detention of the Japanese Korematsu vs. United States (1944).
And that means that, if Donald Trump gets the chance of only one member of the Barbara For many, the United States is entering a very dark place.
The majority opinion in Barbara it is a direct application of existing law
When Judge John Coughenour, a Reagan appointee who was the first judge to block Trump’s attempt to strip the citizenship of many native-born Americans, announced the decision, he said that he “has been on the bench for more than four decades” and “I cannot recall another case where the question presented is as clear as this one.”
Not only is the Constitution clear. The Supreme Court was also held more than a century ago, in United States v. Wong Kim Ark (1898), that the Constitution means what it says. Question in Barbarawhich was whether Trump can revoke the citizenship of people born in the United States, may be the simplest question that has come before the judges in anyone’s life.
The majority opinion in Barbara was written by Chief Justice John Roberts and joined by all three of his Democratic colleagues, including Justice Amy Coney Barrett. It is very short, clocking in at 26 pages, and faithfully recounts this faith-based view of the 14th Amendment and its history.
As Roberts explains, early American citizenship laws were based on English common law, which held that children born within the “jurisdiction” of a King were natural “subjects” of that King and thus citizens. This law prevailed in the United States until the “disgusting decision” of the Supreme Court Dred Scott vs. Sandford (1857) held that “all who were descended from slaves” were not citizens.
The 14th Amendment was passed largely to repeal it Dred Scott and restore English rule. And what about the discrimination of those amendments for people not “under the jurisdiction” of the United States? Roberts explains that this means that “any child born on American soil and under American law was made an American citizen.”
All this is just a summary of the same conclusion that the Court reached almost 130 years ago Wong Kim Arkwhich held that a person born to a Chinese citizen on American soil was an American citizen. Wong Kim Ark it also established the modern understanding of the words “under authority.”
In modern America, this category includes children of foreign diplomats who enjoy diplomatic immunity from US law, as well as children of soldiers in occupation forces. Time Wong Kim Ark it was decided, it also included many Native Americans – on the theory that these people were citizens of their tribal nation and therefore a degree removed from American law – although The 1924 Act established that tribal citizens are also US citizens.
That’s how the law has been since the 14th Amendment was ratified in 1868, and it’s how the Supreme Court has understood the law since at least 1898. And, despite Kavanaugh’s claim that the uptick in immigration has changed the meaning of the Constitution, nothing in the 14th Amendment has changed since then.
So how did this case end with the opposition?
Although Kavanaugh makes the absurd claim that the meaning of the Constitution can change depending on how many people immigrate to American soil, the fundamental opposition, which has been formulated by Justice Clarence Thomas, relies more on a theory first developed by (and later abandoned) by white extremists in the previous years. Wong Kim Ark.
In short, Thomas claims that the citizenship clause of the 14th Amendment it only applies to children of people who are “domesticated” in the United States and not for the children of “temporary aliens.” This theory has no basis in the text of the Constitution, which, again, refers to “jurisdiction” and not residence.
However, in particular, this claim that residence – a legal term that means the intention to remain indefinitely in a certain place – governs citizenship. it has a historical origin. It’s also featured prominently in Trump’s briefings trying to justify his attempt to revoke citizenship. (Justice Neil Gorsuch, appropriately, agrees with Thomas’ opinion but also suggests that “children born in this country to parents who are permanent residents here” are citizens, which could include the children of undocumented immigrants. That attempt to carve out only those children also has no basis in the text of the Constitution.)
In the 1881 book that Trump’s lawyers cite in their brief, white lawyer Alexander Porter Morse — the same lawyer who would successfully defend segregation. Plessy vs. Ferguson (1896) – argued that the 14th Amendment should be read to deny citizenship to “children of temporary aliens in the United States.”
Interestingly, Morse seems to abandon this theory of the 14th Amendment in a speech he gave to the American Bar Association just three years after the publication of his 1881 treatise. In the last three years, courts have largely rejected Morse’s reading of the amendmenttherefore Morse continued with other arguments that could convince the magistrates. (The new arguments, of course, did not convince the Supreme Court Wong Kim Ark.)
So here we are today, with several judges claiming that the Constitution has been misinterpreted for the past 130 years and that the correct reading is the one that white rulers briefly embraced in the 1880s and then abandoned once they proved uninfluenced by 19th century judges.
A justice who would prefer the discarded opinion of a long-dead white man is one agent of chaos to add to the Supreme Court. But now we have several of them, including Kavanaugh, who believes constitutional rights could disappear if more immigrants show up.
One silver lining in all of this is that, currently, there is a five-right majority for the proposition that the Constitution means what it says. But, if Trump gets only one member of the majority, every article of the Constitution could be at risk.
