The Birthright Con
"On Wednesday, the Supreme Court will hear oral argument in Trump v. Barbara, the case that will decide the fate of the birthright citizenship clause of the 14th Amendment.
On his first day back in office, President Trump issued an executive order that tried to redefine birthright citizenship to exclude the children of undocumented immigrants, despite the clear and expansive language of the amendment.
Backing Trump as he tries to rewrite the Constitution by executive fiat is much of the Republican Party and a collection of conservative legal scholars who rushed, in the wake of his decree, to try to give substance to the president’s thin, unpersuasive argument. Against Trump is the weight of Supreme Court precedent, historical consensus and the plain words of the clause itself.
There are few lines in the Constitution that are as straightforward as the citizenship clause of the 14th Amendment: “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.”
As the framers of the 14th understood it, this meant everyone except the children of most Native tribes, the children of ambassadors and any children produced on territory captured by an invading army. The explicit aim of the clause was to settle the question of American citizenship for good.
The Supreme Court would have its swing at the citizenship clause in 1898, after a string of cases whose results gutted much of the substance of the 14th Amendment, including Plessy v. Ferguson, the 1896 decision that flipped the equal protection clause on its head to allow Jim Crow segregation.
It should not escape our attention that it was this court — the Plessy court — that then issued the majority opinion in United States v. Wong Kim Ark, the case that validated the citizenship of a San Francisco-born Chinese American who had been denied re-entry to the United States on account of the 1882 Chinese Exclusion Act and affirmed the broad language of the citizenship clause.
The 14th Amendment, wrote Justice Horace Gray for the court, was “declaratory in form, and enabling and extending in effect.” Its “opening words, ‘All persons born,’ are general, not to say universal, restricted only by place and jurisdiction, and not by color or race.” Everyone born on American soil — other than members of native tribes and “children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign state” notwithstanding — was entitled to American citizenship.
Here was a court that wasn’t opposed to racial subordination. But even it could not stretch the meaning of the birthright clause to make the children of Chinese laborers stateless. The words meant, unambiguously, what they said.
Over the next century, American immigration policy would lurch toward virulent nativism in the 1920s and toward something more expansive and egalitarian in the 1960s. The meaning of the birthright clause stayed the same. There is no doubt that there were those who wished it were otherwise. But this was one of the few places where constitutional meaning was nearly incontestable. There was one effort, in the 1980s, to try to read ambiguity into the birthright clause. The book, “Citizenship Without Consent: Illegal Aliens in the American Polity,” was panned. As one critic wrote, “Their argument is seriously flawed, and demonstrably unfaithful to the intent of the framers.”
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This was the state of things until 2018, when Trump announced that he would end birthright citizenship by executive fiat. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” he said in 2018, falsely asserting that “we’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States — with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”
Legal scholars left and right slammed Trump’s effort as nonsense. “The children born to illegal immigrants are ‘persons born in the U.S.,’ and unlike ambassadors and certain Native Americans, they are ‘subject to the jurisdiction thereof,’” wrote Ilan Wurman, a conservative legal historian, after Trump announced his plans. Wurman, a self-described originalist, would then write a book, “The Second Founding: An Introduction to the Fourteenth Amendment,” that affirmed this view. “By the operation of this sentence,” he wrote of Section 1, “free blacks and the newly freed people (and all others born in the United States) are declared citizens of the United States.”
No matter the interpretive framework you brought to the question, the answer was the same: The birthright clause means what it says.
And so it remained until January 2025, when Trump issued his executive order redefining birthright citizenship. The clause, the president argued, was intended only for the children of enslaved Africans. It was for them and them alone. The Black Americans who fought for expansive citizenship were wrong. The men who drafted the amendment were wrong. Wong Kim Ark was wrong. The words were wrong.
In 2018, Trump seemed to be a fluke — an ultimately marginal figure who would leave politics soon enough. In 2025, he appeared to be dominant — the defining figure of modern American life. What had been met with disdain and ridicule in the previous administration was received, on this attempt, with curiosity and open arms.
Wurman, who argued previously that his originalism compelled the traditional reading of the birthright clause, said after the executive order was issued that the meaning of birthright citizenship was less settled than the consensus supposed. The president, he suggested, might be right.
Randy Barnett, a conservative scholar whose previous work on the 14th Amendment emphasized the monumental influence of abolitionists on the birthright clause, also agreed that there was more to the question than traditionally understood, despite co-writing a book that never challenged the consensus view.
Yet another conservative scholar, Kurt Lash — whose 2021 essay on the subject affirmed the traditional reading and whose edited volume on the Reconstruction amendments contains hundreds of pages of primary sources, not one of which questions it — also made an apparent about-face to insist that there was something to the president’s executive order.
In the absence of any new evidence regarding the drafting of the 14th Amendment, the intent of its framers or the public meaning as understood at ratification, these scholars have advanced a set of views that purport to exclude the children of undocumented immigrants from the citizenship clause — or at least leave the question up for debate. They say that birthright citizenship hinges on the status of the parents: Are they domiciled in the United States? Do they owe allegiance to the national government? They suggest, as well, that “subject to the jurisdiction” carries an esoteric, highly technical meaning that ought to control the meaning of the citizenship clause.
In the face of this sudden burst of revisionism, several legal scholars — once again, on both the left and the right — have stood up to defend the traditional view and bring the weight of generations of scholarship to bear on the question. Their conclusion is the same as those who came before them: The birthright citizenship clause means what it says, and it has always meant what it says.
Surveying the revisionist arguments, Keith Whittington, an originalist legal scholar working from the political right, concludes that “children born under the protection of American law are citizens by virtue of the 14th Amendment, as they are citizens by virtue of the longstanding common-law principles that the 14th Amendment recognized and declared.”
Applying an originalist methodology from the political left, the legal scholars Evan Bernick and Jed Shugerman find that “the plain meaning at the time of ratification, the Reconstruction debates and the common law history all demonstrate that children of transient aliens or unlawful entrants are citizens.”
In his brief for the court, the constitutional scholar Akhil Reed Amar observes that “nowhere does the text use the word ‘parent,’ ‘parents’ or ‘domicile’ ”; that “these words and concepts were no part of the Amendment’s letter or spirit”; and that revisionists have abused common law history to “twist the jurisdiction clause into a pretzel, torturing it to carry meanings that its words and history cannot bear.”
And in their contribution to the debate, the historians Martha Jones and Kate Masur — whose work describes, among other things, the efforts of antebellum Black Americans to establish birthright citizenship for themselves — show that the record supports the traditional, inclusive view of birthright citizenship. In the words of Senator John Conness of California, himself an immigrant from Ireland, spoken in 1866: “The children of all parentage whatever … should be regarded and treated as citizens of the United States entitled to equal civil rights with other citizens of the United States.”
A common thread in each brief is the fact that the drafters wrote the citizenship clause to repudiate the Supreme Court’s decision in Dred Scott v. Sandford, a ruling that wrote Black Americans out of the national community and defined American citizenship in terms of race and nationality. For Chief Justice Roger Taney, who wrote the majority opinion, some Americans could never belong to the American nation. No matter the place of their birth, they would never have the right to have rights.
The abolitionist vision of a national and egalitarian citizenship that the radical Republicans embedded into the Constitution was forged in direct opposition to this logic — to the notion that citizenship was a privilege bestowed by the dominant class rather than a natural right bestowed by birth.
It is not so much that revisionism is on its face outrageous, but that any alternative reading of the citizenship clause must strike at the heart of the rejection of Dred Scott. On this count, Trump and his defenders fail. Their vision of citizenship — which would plunge countless children into statelessness as a permanently subordinate class — would bring Dred Scott back from the dead. And it would do this in support of a political agenda that seeks nothing less than the reconstruction of race hierarchy and the rank domination of despised minorities.
The evidence in favor of the traditional view of the citizenship clause is overwhelming. To rule otherwise is to say, in essence, that two plus two equals five. Which is to say that if the Supreme Court decides in favor of Trump, it will have less to do with law or history than the political power of the president and his movement.
Trump v. Barbara, then, is a stark reminder that the struggle over constitutional meaning involves the entire nation. The revisionist case rests less on new evidence than it does on Trump’s claim to embody the nation and its desires. If he is ascendant, then the people must want a closed, cloistered society.
We know this isn’t true. The task ahead for the president’s opponents is to recover the egalitarian substance of the 14th Amendment and wield it against his narrow and exclusive vision of American society. This is the work of history, it is the work of law and it is the work, as always, of politics.
Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va."
