The Supreme Court recently heard oral arguments in Trump v. Barbara, a landmark case asking whether the 14th Amendment imparts “birthright citizenship” to children born on U.S. soil to parents who are in the country illegally or temporarily. It’s a legal question of existential importance, and the answer will determine whether the American people control their destiny or whether their destiny will be surrendered to the U.S.-born children of foreigners who have no enduring connection to our country or are present in defiance of our laws.
The case turns on the meaning of one sentence in 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.” The framers did not create mass citizenship based solely on birthplace. The phrase “subject to the jurisdiction thereof” is key. And while at first blush the phrase’s meaning may appear straightforward, the historical record makes clear that it is a term of art. So what did the phrase originally mean?
It is rare for a case to reach the Supreme Court unencumbered by mountains of prior non-originalist precedent. In most instances, the court resolves cases without doing the serious work of originalism. The justices instead doff the cap to precedent, decide an issue on statutory grounds, or identify some jurisdictional problem that relieves them from answering the constitutional question.
In the birthplace citizenship case, there are no such excuses. Existing precedent is itself originalist; the Supreme Court has never addressed the issues of illegal or temporary presence; the relevant statute tracks the constitutional text; and there are no jurisdictional off-ramps. The original meaning of the 14th Amendment should therefore resolve this case.
The historical evidence is strong: The original meaning of jurisdiction is not mere power or authority but complete allegiance. To be “subject to the jurisdiction” means to be subject to the political jurisdiction of the United States in the sense that the person owes complete allegiance to the United States. Sen. Lyman Trumbull — the architect of the Civil Rights Act of 1866, constitutionalized by the 14th Amendment — explained that the goal was “to make citizens of everybody born in the United States who owe allegiance to the United States.”
History shows that persons born in the United States to parents who have made the United States their permanent home owe complete allegiance to the United States and are citizens, while the U.S.-born children of parents who are only temporarily present in the United States owe no such allegiance and are not citizens. This history makes sense. Why should the U.S.-born children of temporary visitors expect to owe the sort of allegiance that gives rise to the obligations of citizenship in a republic? Given the history, it follows that the U.S.-born children of parents who are illegally present in the United States and cannot lawfully make this country their permanent home similarly owe no allegiance to the United States and cannot be citizens.
Of course, the pressure campaigns from legal and media elites are in full swing. They say the government’s position is racist. Others balk at reversing the now-decades-long practice of extending citizenship to nearly everyone born in the United States. But originalism is supposed to cut through political rhetoric and disregard longstanding misapplications of the Constitution. The history of the 14th Amendment answers the question, so for originalists, that should be that.
But the pressure campaigns happen because they often work, and some “originalist” justices appear to be straining to evade the trove of originalist evidence so they can uphold the birthplace status quo. I hope I’m wrong. But if I’m right, it’s worth asking: What is the value of originalism?
This originalist principle of interpretation — the “triumph” of the conservative legal movement — counts for little if justices can brush aside the historical evidence because it is inconvenient. And if originalism fails here because originalists cannot achieve consensus on methodology or the relevant history, then perhaps a higher principle should govern: The Constitution should not be interpreted as a suicide pact. Given the stakes, this case is potentially a make-or-break moment for originalism.
If the oral argument portends the future, a majority of justices appear ready to jettison the inconvenient history and officially embrace mass birthplace citizenship. Originalism can’t stop them. Maybe it never could. Either way, we should remember that originalism is only as virtuous as the judges who wield it.
