Supreme Court Affirms Original Meaning of Birthright Citizenship, Strikes Down Trump’s Executive Order

When the 14th Amendment was introduced in the U.S. Senate in 1866, the first senator to speak out in opposition to it was a Pennsylvania Republican named Edgar Cowan. He objected in part because the Citizenship Clause of the proposed amendment would make American citizens out of the U.S.-born children of unwelcome immigrants. “Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?” Cowan asked. And what about the “Gypsies” that he claimed were present in his own state? “These people live in the country and are born in the country. They infest society,” he declared. Yet the 14th Amendment’s grant of birthright citizenship would cover them, too. “If the mere fact of being born in the country confers that right,” Cowan said, “then they will have it; and I think it will be mischievous.”

Cowan’s objections were answered by another Republican senator, John Conness of California. “I beg my honorable friend from Pennsylvania to give himself no further trouble on account of the Chinese in California or on the Pacific coast,” Conness said. “We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”

In a 5–4 decision issued on Tuesday, the U.S. Supreme Court affirmed the original understanding of the Citizenship Clause that was voiced by Conness.

“At issue in this case,” Chief Justice John Roberts wrote in Trump v. Barbara, “is whether the Constitution guarantees citizenship to children born of parents unlawfully or temporarily present in the United States.” The Court rightly held that the Constitution does indeed guarantee birthright citizenship to the U.S.-born children of such parents.

This result has been a long time coming. Eleven years ago, I wrote about then-presidential candidate Donald Trump’s attack on birthright citizenship under the headline, “Trump vs. the Constitution.” “If the courts follow the Constitution,” I argued, Trump’s efforts to undermine the 14th Amendment “will surely fail.”

Trump v. Barbara makes the failure official. “Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land,'” the Court held in Barbara. “We keep that promise today.”

Writing in dissent, Justice Clarence Thomas argued that the 14th Amendment should be read narrowly to guarantee birthright citizenship only to those newborns whose parents are “subject to the jurisdiction of the government of his domicile.” But that is not what the text requires. The text of the 14th Amendment says: “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.”

To be “subject to the jurisdiction of the United States” means to be subject to the laws and authority of the United States. This meaning was well settled at the time of the 14th Amendment’s drafting and ratification. For instance, the 1865 edition of Noah Webster’s An American Dictionary of the English Language defined jurisdiction, in the context of a government, as meaning the “power of governing or legislating,” “the right of making or enforcing laws,” and “the power or right of exercising authority.”

Both illegal immigrants and lawful temporary visitors are “subject to the jurisdiction of the United States” under this original meaning because the U.S. government has “the right of making or enforcing laws” that apply against such persons when they are present on U.S. soil. Such persons may be arrested and prosecuted under our laws when they are here. That makes their U.S.-born children birthright citizens under the original meaning of the constitutional text. The majority in Trump v. Barbara was therefore right to reject the nontextualist and unhistorical reading promoted by Thomas and others.

The Supreme Court does not always get it right in cases of such magnitude. This time it did.