Elizabeth Cady Stanton was born into a prominent family in Johnstown, New York on November 12, 1815, where she lived with her parents, five siblings, and as many as 12 servants in a mansion on the town square. Her father, Daniel Cady, was a distinguished lawyer and politician, and her mother, Margaret Cady née Livingston, ran the house with what her daughter called “queenly and magnificent sway” and “the soul of independence and self-reliance.” They ensured their daughter had a stronger education than most young women of her era. Elizabeth studied debate, Greek, and mathematics at the Johnstown Academy before attending Troy Female Seminary, where she felt the first stirrings of a lifelong distrust of religious revivalism and its constraining effects on young women.

Her political education took place at her cousin Gerrit Smith’s house in upstate New York. Smith, who would help fund John Brown’s raid on Harper’s Ferry, invited a constant stream of abolitionists, temperance advocates, and Native Americans to his stately home on the Underground Railroad. It was there that she met her future husband, Henry Stanton, whom she married just before they visited London for the World Anti-Slavery Convention in 1840. Though women were forbidden to participate, Stanton watched the proceedings closely and befriended fellow spectator and suffragist Lucretia Mott.

Video: Elizabeth Cady Stanton, Women’s Suffrage, and the Legacy of the 19th Amendment

In 1847, at age 31, Stanton moved to Seneca Falls, New York, already the mother of three children. She would go on to have four more between 1951 and 1959. Nearly all of the burdens of housekeeping and childrearing fell to her. Henry, absorbed in his law practice, was also active in the formation of the abolitionist Free Soil Party at the time. Exhausted and isolated by housework, which prevented her from traveling and writing as widely as she would have liked, Stanton expressed her “long-accumulating discontent” to Mott, a Quaker, and other Quaker women in the community in the summer of 1848. They resolved to organize a women’s rights convention in Seneca Falls a few days later.

This gathering, known as the Seneca Falls Convention, took place in the town’s Wesleyan Chapel from July 19–20, 1848. Among the attendees, nearly all of whom were white and female, was the abolitionist Frederick Douglass, who defended Stanton’s controversial resolution in favor of women’s suffrage. She was also the principal author of the Declaration of Sentiments, a remodeling of the Declaration of Independence that placed women’s equality at its center. She listed women’s political grievances against men (“he has compelled her to submit to laws, in the formation of which she had no voice”) in much the same way that American colonists had listed their grievances against King Charles III.

Historic Document: Seneca Falls Declaration (1848)

The Declaration of Sentiments concluded with an urgent demand: “In view of this entire disfranchisement of one-half the people of this country... and because women do feel themselves aggrieved, oppressed, and fraudulently deprived of their most sacred rights, we insist that they have immediate admission to all the rights and privileges which belong to them as citizens of these United States.” It was signed by 100 of some 300 attendees to the convention and reprinted in abolitionist newspapers across the country.

Stanton met the women’s rights reformer Susan B. Anthony in 1851, forming an enduring friendship and partnership that would last the rest of their lives. Anthony excelled at organizing, while Stanton excelled at speeches and written pronouncements. Together they began to link the demands of the temperance and suffrage movements, arguing that liberalized divorce laws would allow women and children to escape subordination by alcoholic fathers. They also played leading roles in the New York Anti-Slavery Society in the 1850s while Henry Stanton helped organize the Republican Party in opposition to the expansion of slavery into western territories.

Stanton had long used slavery in her speeches and writings as a metaphor for women’s subordination to men, but during the Civil War, she increasingly referred to slavery as an evil in itself. In 1861, she joined a speaking tour to call for immediate and unconditional emancipation and “no compromise with slaveholders.” She co-authored an “Address to the Women of the Republic” with Anthony that urged northern white women to defend the war’s “ultimate purpose,” and in 1863, they founded the Women’s National Loyal League to campaign for a constitutional amendment to end slavery. It is considered the first national women’s political organization in U.S. history.

After President Abraham Lincoln’s assassination in 1865, the elections of 1866 brought dramatic wins for Republicans in the House and Senate. Reformers proposed legislation to grant suffrage and the other rights of citizenship to African American men, declaring that it was “the Negro’s hour.” Stanton expressed concern that the 14th Amendment would introduce sex-based distinctions into the Constitution to explicitly exclude women from these rights. In heated debates with other suffragists and abolitionists, she began to display the racism and nativism that would ultimately taint her legacy, declaring boldly that she “would not trust” the Black man with her rights if he were enfranchised first.

In 1870, Stanton and Anthony advanced a legal theory called the “New Departure.” They argued that a constitutional amendment for women’s suffrage was not necessary because the 14th Amendment’s definition of citizenship already implicitly guaranteed women the right to vote. The Supreme Court rejected this strategy in the 1875 decision Minor v. Happersett, ruling that women were citizens, but that suffrage was not one of the rights of citizenship.

In the final years of her life, Stanton collaborated with Anthony on a multi-volume history of the women’s movement. She also published an intensely controversial Women’s Bible, which rewrote and reinterpreted passages of the Bible that had long positioned women as inherently subservient to men. Her activism in this period, she said, was grounded by her understanding of women’s “birthright to self-sovereignty.” Stanton often expressed her resentment that African Americans and immigrants possessed more rights than educated white women, and in the 1890s, she advocated for literacy tests so that “chiefly foreign” labor agitators would not have access to the ballot.

Stanton did not live long enough to see her dreams of enfranchisement fulfilled. She died of heart failure in New York City on October 26, 1902, 17 years before the 19th Amendment was ratified, granting women the right to vote.

Anna Salvatore is a Content Fellow at the National Constitution Center and a graduate of Princeton University.

The justices heard arguments in Trump v. Barbara with President Donald Trump in attendance at the court for part of the session. At issue was Trump’s executive order No. 14,160, Protecting the Meaning and Value of American Citizenship, which claims birthright citizenship does not apply in several situations traditionally understood to be protected by the 14th Amendment’s Citizenship Clause, which reads that “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.”

One question was the importance of the precedent of United States v. Wong Kim Ark (1898), a long-settled ruling that defines the citizenship rights of people born in territory controlled by the United States. Another was the role of English common law as the basis for the Citizenship Clause—and how best to understand its lessons. And still another was how the definition of birthright citizenship fits in modern times within the contours of the prior two precedents.

The Supreme Court has long interpreted the Citizenship Clause to bestow automatic citizenship on a child born in the territory of the United States regardless of their nationality, with limited exceptions. The clause was meant as a direct rejection of the Supreme Court’s Dred Scott v. Sandford decision from 1857, where Chief Justice Roger Taney held that African Americans had “had no rights which the white man was bound to respect.”

In the Wong Kim Ark case, a divided Supreme Court held that Wong Kim Ark, who was born in San Francisco to parents who were Chinese citizens, automatically became a United States citizen at birth.

The administration argued in briefs that another Supreme Court precedent, Elk v. Wilkins (1884) applied to Barbara. In the administration’s view, Elk and other precedents limited birthright citizenship to children of persons “domiciled within the United States.” The administration also argued key language in the Citizenship Clause—the words “and subject to the jurisdiction thereof”—did not grant U.S. citizenship in situations where children were born in the territory of the United States to parents who were not legally in the country or where the parents were temporary visitors.

The arguments at the Supreme Court

The questioning at the Supreme Court on Wednesday branched out in several directions, from the importance of English common law to the ability of the courts and elected officials today to reconsider citizenship status related to situations that did not exist more than 100 years ago.

Link: Read the arguments transcripts | Listen to the audio

After Solicitor General D. John Sauer’s opening statement, Chief Justice John Roberts asked Sauer about his push to expand the list of birthright citizenship exceptions under the “jurisdiction of the United States.” “You obvious put a lot of weight on the theory of ‘the jurisdiction thereof.’ The examples you give to support that strike me as very quirky, you know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens [that] are here in the country,” Roberts commented. “I’m not sure how you can get to that big group from such a tiny list … of idiosyncratic examples.” Sauer pointed to the debates of the Civil Rights Act of 1866 and other evidence supporting his case.

Soon, the subject of the English common law came into play, as first raised by Justice Samuel Alito, who wondered if a general rule based on the common law applied to situations that exist today. Justice Clarence Thomas also asked Sauer if immigration was part of the debate about the 14th amendment when it was considered by Congress.

Justice Elena Kagan noted that Sauer’s court brief sought to revise Wong Kim Ark, which she viewed as a precedent having a clear rationale as “a common law tradition … it came from England, we know what it was, everybody got citizenship by birth except for a few discrete categories.” Sauer did not agree with Kagan’s description of Wong Kim Ark, which he argued did not apply to the children of temporary visitors to the United States.

Justice Ketanji Brown Jackson commented that Sauer had “hurdles to clear” to establish a case that the framers and ratifiers of the 14th Amendment were not importing established common law rules when they crafted the amendment’s language.

Cecillia Wang then argued the case for the American Civil Liberties Union—challenging the administration’s executive order. She quickly faced questions from several justices.

Chief Justice Roberts asked Wang why in her arguments she downplayed the importance of the word “domiciled” in the administration’s case when the word was used more than 20 times in the Wong Kim Ark decision. Justice Alito noted that the concept of “permanent domiciles” was included in the opening and closing of the majority opinion in the Wong Kim Ark.

In response to both questions, Wang cited the English common law tradition, and an early Supreme Court decision, The Schooner Exchange v. McFaddon (1812), as establishing that having a domicile was not a factor in establishing birthright citizenship.

Justice Kagan later returned to a question posed by Justice Alito about how the Supreme Court should deal with a problem that did not exist when the 14th Amendment was ratified, and the circumstances of how the Court should consider birthright citizenship for children of persons unlawfully in the United States.

Wang dismissed the executive order’s domicile requirement and argued that it was “crystal clear” from Wong Kim Ark and prior congressional debates that “the framers of the 14th amendment meant to have a universal common law rule of citizenship, subject to a closed set of exceptions.”

Justice Brett Kavanaugh then asked Wang if the idea of considering exceptions to the 14th Amendment was “frozen” at the time that the 14th Amendment was framed and ratified or if the Court should consider exceptions based on “modern circumstances” such as non-citizens unlawfully in the country. Wang cited a case brief that said the government’s position was a challenge to the current rule and not promoting a new rule itself.

As the arguments unfolded, it became clear that the justices were considering the 14th Amendment’s text and history, as well as the context of the Wong Kim Ark’s precedent in modern times and the implications and complications of possibly expanding exceptions to birthright citizenship. Several justices also asked about the ability of Congress on its own to establish birthright citizenship exceptions through legislative action.

Given the complexity of the case, a final decision from the Court is not expected until at least late June 2026.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

Since then, the birthright citizenship controversy has been working its way through the legal system in several forms. Now on April 1, 2026, the Supreme Court will hear arguments in Trump v. Barbara, which will likely settle the constitutionality of President Trump’s executive order.

Traditionally, the 14th Amendment’s Citizenship Clause has been interpreted to bestow automatic citizenship on a child born in the territory of the United States regardless of their nationality, with limited exceptions. The clause reads, “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 clause was also a rejection of the Supreme Court’s Dred Scott v. Sandford decision from 1857, which held that African Americans could not become American citizens and had “no rights which the white man was bound to respect.”

The Supreme Court’s landmark case on birthright citizenship is United States v. Wong Kim Ark (1898). There, a divided Supreme Court held that Wong Kim Ark, who was born in San Francisco to parents who were both Chinese citizens, automatically became a United States citizen at birth.

The Trump administration is claiming another landmark Supreme Court decision, Elk v. Wilkins (1884), supports the argument that birthright citizenship should not be granted to children born to aliens illegally in the United States and to aliens on a temporary visit to the country.

The executive order’s road to the Supreme Court

On Jan. 20, 2025, President Donald Trump issued Executive Order No. 14,160, Protecting the Meaning and Value of American Citizenship. The order claimed the Citizenship Clause did not grant citizenship in two situations where a child was not, in the administration’s view, under the “jurisdiction of the United States” as stated in the 14th Amendment.

One situation was when a child’s mother was “unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.” The other instance was when “that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary … and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

On Jan. 21, 2025, Washington state, along with three other states, contested the executive order in court, arguing that it went against Wong Kim Ark and the traditional understanding of the Citizenship Clause. A district court issued a temporary universal injunction against the executive order, the U.S. Court of Appeals for the Ninth Circuit upheld the injunction, which barred executive officials from applying the order to anyone, not just the plaintiffs.

In Trump v. CASA (2025), a divided Supreme Court said the district court lacked the power to issue a universal injunction in the case; it did not decide the 14th Amendment constitutional question about the Citizenship Clause.

On the same day that the Supreme Court decided Trump v. CASA, a group of individuals sued the federal government in the U.S. District Court for the District of New Hampshire over President Trump’s birthright citizenship executive order. A plaintiff under the pseudonym “Barbara” led the group. The court approved a class of individuals who might be affected by its decision and issued a ruling that included an injunction. It also determined the group was likely to succeed on the merits of its claims that the executive order violated the Citizenship Clause.

On Sept. 26, 2025, the Trump administration submitted a petition for a writ of certiorari with the Supreme Court, asking the Court to consider the case. The justices granted the request on Dec. 5, 2025, agreeing to decide “whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.”

The debate over two Supreme Court decisions from Horace Gray

In briefs submitted to the justices, the two landmark Supreme Court decisions from Justice Horace Gray frame the arguments made by the petitioners (the Trump administration) and the defendants (the American Civil Liberties Union and others).

The long-held understanding of Wong Kim Ark’s majority opinion, written by Justice Horace Gray, is cited by the ACLU as a factor controlling the case. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens,” Gray wrote. He cited narrow exceptions for children of foreign sovereigns or their ministers; children born on foreign public ships; children of enemies within and during a hostile occupation of part of our territory; and children who were members of “the Indian tribes owing direct allegiance to their several tribes.”

Beyond that, Gray concluded that the 14th Amendment, “in clear words and in manifest intent includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”

United States Solicitor D. John Sauer argues that Executive Order No. 14,160 complies with Wong Kim Ark when considered alongside Elk v. Wilkins, another majority opinion written by Justice Gray. In that case, John Elk, a Winnebago Native American, was born on a reservation but moved to Ohama, where he was employed and paid taxes. Elk was not allowed to vote, and, on appeal, Elk cited Section 2 of the 14th Amendment, which only excluded “Indians not taxed” as federal voting electors.

In his opinion in Elk, Gray determined that as a Native American, Elk was “no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.”

Gray also wrote in Elk that the Citizenship Clause was intended to “put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside.”

The basic arguments at Court

Sauer’s primary argument is that “children of temporarily present or illegal aliens do not qualify [for citizenship] because their parents are not domiciled in, and thus do not owe the requisite allegiance to, the United States,” citing the Elk decision’s definition of political jurisdiction. He also believes the Wong Kim Ark decision supports his argument by recognizing a “general rule of citizenship by birth in the territory for children of persons ‘domiciled within the United States.’”

The ACLU is dismissive of that argument. “Wong Kim Ark’s basic holding is that the [Citizenship] Clause enshrines the preexisting common law of citizenship. Under the common law—including the dominant American decision of the era, Lynch v. Clarke, (N.Y. Ch. Ct. 1844)—the rule was citizenship by birth, regardless of parental nationality or immigration status. Domicile was irrelevant,” the ACLU states.

“More specifically, Wong Kim Ark interpreted the phrase ‘subject to the jurisdiction’ in accord with The Schooner Exchange v. McFaddon (1812), explaining that even temporary visitors are ‘subject to the jurisdiction” of the United States,’” the ACLU concludes.

Given the core constitutional questions at stake in Trump v. Barbara, the arguments at the Supreme Court will be widely watched and closely scrutinized, with a decision expected in late June.

Scott Bomboy is the editor in chief of the National Constitution Center.

In Watson v. Republican National Committee, the Republican National Committee (RNC) and others sued Michael Watson in his capacity as Mississippi Secretary of State over a state law that allows Mississippi to count mail-in ballots up to five days after Election Day under certain circumstances.

The RNC believed only federal statutes define the power of Congress to set the date for federal elections and any policy to permit the counting of ballots received after Election Day. The Mississippi state law allowing the counting of late-arriving ballots for up to five days after Election Day, they argued, violated the rights of candidates to stand for office protected by the First and 14th Amendments.

A federal district court agreed with Watson and the state, deciding there was not a conflict between the Mississippi state law and several federal statutes. However, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the RNC, concluding that federal Election Day “is the day by which ballots must be both cast by voters and received by state officials.” The full Fifth Circuit denied a case rehearing in a 10-5 vote. The Supreme Court accepted the case on Nov. 10, 2025.

In briefs submitted to the court prior to arguments, the Supreme Court was presented with several issues to consider. The arguments from both sides took into account the Constitution’s Article 1, Section 4, Elections Clause, which allows individual states to establish the “Times, Places and Manner of holding Elections for Senators and Representatives.” However, Congress can at “any time by Law make or alter such Regulations.” Congress has passed statutes 2 U.S.C. § 7, 2 U.S.C. § 1, and 3 U.S.C. § 1, that set the Tuesday after the first Monday in November, in every even-numbered year, as the “election” day for federal offices.

One basic issue for the court were the requests from Watson and the RNC for the justices to decide when a federal election happens. In the state of Mississippi’s view, an election happens at the time when voters fill out and submit ballots on or before Election Day. Citing Newberry v. United States (1921) and historical precedents, Mississippi argued that it had the ability to count ballots postmarked on or before Election Day that are tardy because the election outcome “does not depend on when ballots are received.”

The RNC took a different view. Citing the two federal laws that set the “election” day for federal offices, the RNC argued that an election for federal offices ends on Election Day. Citing another Supreme Court precedent, Foster v. Love (1997), the RNC argued that extending an election deadline set by Congress conflicted with the intent of federal lawmakers, and that federal Election Day statutes govern when states must close the ballot box, not allowing states to count late-arriving votes.

The extended arguments at the Supreme Court

After Mississippi solicitor general Scott G. Stewart’s opening statement on March 23, Justice Clarence Thomas posed the basic question presented in the briefs to the Court about the definition of Election Day in federal elections.

“Just to be clear, you have said in your opening statement sometimes, you said, the decision—the choice has to be made by Election Day, and at other points, you say on Election Day. Which is it?” Thomas asked. Stewart replied that the election was held by Election Day, leading Justice Thomas to offer an example of a person giving their mail-in ballot to a neighbor to submit in the mail as seemingly conflicting with the state law.

The follow-up questions from the court focused on several issues. One line was focused on complications related to policy scenarios posed by Justices Thomas and Justice Amy Coney Barrett about how mail-in ballots were submitted.

Barrett posited that while the Mississippi state law required a mail-in ballot to be “deposited in USPS or with a common carrier,” it could easily be included in a group of ballots collected by an HOA to be deposited as a group, which presented conflicts.

Another line of questioning centered on precedents. Justice Sonia Sotomayor cited practices during the Civil War that permitted officers to submit ballots on behalf of other military members. Justice Ketanji Brown Jackson cited other precedents dating back to the Founding era.

“Congress permitted in 1792 about a month to elapse between the casting of votes, which, by the way, it called Election Day, and … the electors submitted them to the president of the Senate up to a month after,” Jackson argued. That example presented “significant and compelling historical evidence of Congress's understanding of what was required by Election Day versus the receipt of those ballots at some subsequent point,” she told Mississippi solicitor general Stewart.

Justice Samuel Alito also asked Stewart about the appearance of impropriety if states could set extended deadlines for receiving ballots. “Some of the briefs have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped by the acceptance later of a big stash of ballots that flip the election.” Stewart replied by pointing to the case brief of United States Solicitor General D. John Sauer: “They haven't cited a single example of fraud from post-Election Day ballot receipt in this century.”

Military and absentee voting and other scenarios

In its arguments, the state of Mississippi also pointed to the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), a law that permits the late receival of overseas military and absentee ballots.

Justices Jackson and Sotomayor had direct questions about the UOCAVA precedent. “I think we have several federal statutes that suggest that Congress was aware of post-Election Day ballot deadlines that the states had enacted and, in fact, incorporated those in several circumstances,” she told Stewart.

In later questioning with Paul Clement, who was arguing for the RNC, Sotomayor asked if Congress by passing UOCAVA that allowed for the states to establish a “process in the manner provided by law for absentee ballots.” Justice Elena Kagan echoed similar comments about UOCAVA: “What [Congress] took from that is that they thought that this state function of setting ballot receipt deadlines was something that was a state function.”

Justice Neil Gorsuch also asked about a scenario where states that had extended ballot receipt deadlines could also allow for a voter recall. Chief Justice John Roberts wondered if the Court’s ruling could affect the status of early voting laws in the states that allowed the counting of late-arriving votes.

And Justice Brett Kavanaugh voiced concerns to Clement about how the Court’s decision could affect the upcoming fall elections under the Purcell principle. Based on Purcell v. Gonzalez (2006), courts are not expected to change voting rules and guidelines prior to an election in an effort to avoid confusing voters while presenting conflicts for people administering elections. Clement believed a June decision from the court left adequate time for state officials to prepare for the fall general election.

After two hours of arguments, these and other questions presented to the Court will be subject to much speculation as will the Court’s decision, given the high profile of elections that will decide the control of Congress.

Scott Bomboy is the editor in chief of the National Constitution Center.

A version of the bill passed in the House on Feb. 11, 2026, in a 218-213 vote along party lines, with one Democrat, Henry Cuellar of Texas, voting with House Republicans in favor of the bill.

It is widely expected that the chamber’s filibuster rules will prevent a full vote on the floor, but the act and debate process itself will touch on several constitutional issues.

What is the SAVE America Act?

In its current form, the Safeguard American Voter Eligibility Act seeks to amend Section 3 of the National Voter Registration Act of 1993. The changes include requiring a passport, REAL ID card, military ID card, or other forms of identification that list the applicant as a citizen of the United States when applying to register to vote in elections for federal office. The act also requires documentary proof of United States citizenship when a person applies for the National Mail Voter Registration Form.

The SAVE America Act also requires that a “state shall remove an individual who is not a citizen of the United States from the official list of eligible voters for elections for Federal office.” For states that don’t require advance voter registration, such as North Dakota, they must establish “a system for confirming the citizenship of individuals voting in an election for Federal office prior to the first day for voting.”

In addition, the Help America Vote Act of 2002 would be amended to require that people who want to vote in person present an official valid physical photo identification at the polls. For people not voting in person, a copy of a valid photo identification or a state-approved affidavit with the last four digits of the individual’s Social Security number must accompany a remote ballot for federal office elections. Exceptions to the remote ballot ID requirement include absent uniformed services voters and people covered under the Voting Accessibility for the Elderly and Handicapped Act.

The Constitution and subsequent voter eligibility laws

In Article I, Section 4, of the Constitution, the ability to establish and regulate elections for federal office is divided between state governments and the federal government. The Elections Clause reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations ….”

In general, the Constitution delegates the powers to conduct and administer voter registration to states and territories. However, Congress has passed laws under Article I, Section 4, using its ability to “make or alter” federal election regulations to add additional conditions. The National Voter Registration Act of 1993 established some requirements for voter registration applications for federal elections, which included a statement specifying eligibility requirements, including citizenship.

The Help America Vote Act of 2002 also required registration applications for federal elections include information such as a current and valid driver's license number, the last four digits of a Social Security number, or a unique identification number provided by the state for voter registration purposes.

Also, Section 611 of Title 18, U.S. Code, generally prohibits “any alien to vote” in an election for federal candidates with some exceptions, including if an “alien’s” parents is or was a U.S. citizen by birth or naturalization, if an “alien” permanently resided in the United States prior to attaining the age of 16, and if an “alien . . . reasonably believed at the time of voting” that they were a U.S. citizen.

Congress has various election enforcement powers under several amendments, which include banning discrimination at the ballot box based on race (15th Amendment) and on sex (19th Amendment). And Congress has passed statutes like the Voting Rights Act of 1965 to protect these rights.

The filibuster and congressional debate

The Senate voted 51-48 on Tuesday to move the House-approved SAVE America Act for consideration, with Republican Sen. Lisa Murkowski of Alaska joining the Democrats in objecting to the motion. Senate Majority Leader John Thune (R-S.D.) has indicated that the bill’s supporters could debate as long as possible until he calls for a cloture vote. In interviews, Thune has acknowledged publicly that enough votes don’t exist to overcome a filibuster for a vote beyond the debates.

The filibuster is a tactic that dates back to the 1840s in the Senate. The Senate’s website defines a filibuster as “a loosely defined term for action designed to prolong debate and delay or prevent a vote on a bill, resolution, amendment, or other debatable question.”

The modern version requires that at least 60 Senate members vote for cloture, or to end a debate if a member threatens a filibuster, to get a final floor vote to pass a law. The Senate currently uses a “silent” filibuster system where a member only needs to threaten a filibuster via a message to the Senate Majority Leader. A cloture vote is then required, with a 60-vote majority, to override the filibuster, limit debate time, and have a floor vote.

Another possibility is that Majority Leader Thune could allow for a “talking filibuster” that could extend for weeks by getting 51 votes to force Senate’s Democrats to conduct lengthy floor speeches against the SAVE America Act while requiring constant in-person attendance by the Republicans. In such a scenario, the Senate could not consider most other business until the filibuster ends. Thune has already stated he doesn’t plan to pursue a talking filibuster due to a lack of votes.

Thune also has not supported efforts to eliminate the filibuster entirely, an idea frequently championed by President Donald Trump. The president and some members of the Republican caucus want a talking filibuster to force a vote. How that plays out remains to be seen, but there will be considerable attention to the filibuster’s future in coming weeks.

Scott Bomboy is the editor in chief of the National Constitution Center.

On March 2, 2026, the Court without comment denied an appeal in Thaler v. Perlmutter. Nearly a year earlier, the U.S. Court of Appeals for the District of Columbia determined the Copyright Office correctly denied Dr. Stephen Thaler’s copyright claim for an AI-created picture titled “A Recent Entrance to Paradise.”

Thaler, a computer scientist, created a generative artificial intelligence named the “Creativity Machine,” which then created the picture on its own. On a copyright registration application, Thaler listed the Creativity Machine as the work’s sole author, and himself as the work’s owner.

In his appeal to the Supreme Court, Thaler wanted the justices to consider whether “works outputted by an AI system without a direct, traditional authorial contribution by a natural person could be copyrighted.”

The case’s background

Congress created the U.S. Copyright Office under its power to regulate copyrights, as outlined in Article I, Section 8 of the Constitution. The Copyright Clause allows Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

On Nov. 3, 2018, Thaler filed an application to register “A Recent Entrance to Paradise” with the Copyright Office. He stated the submission “lacked traditional human authorship” and Thaler, as the owner of the AI he created, should be the owner of any copyright related to the artwork. On August 12, 2019, the Copyright Office refused Thaler’s copyright claim because it “lack[ed] the human authorship necessary to support a copyright claim.”

The Copyright Office cited as precedent the Supreme Court ruling in Burrow-Giles Lithographic Co. v. Sarony (1884). In the Sarony decision, Justice Samuel F. Miller ruled that Burrow-Giles Lithographic violated the copyright owned by Sarony for a posed picture taken of the playwright Oscar Wilde. Burrow-Giles argued unsuccessfully that photographs were not copyrightable because they lacked human authorship, and they were the product of a machine; but the Court held the “photograph to be an original work of art, the product of plaintiff's intellectual invention.”

In its Compendium of Copyright Office Practices, the Copyright Office cites the Sarony decision and another case, In re Trade-Mark Cases, from 1879, as limiting copyright authorship to human beings. The Copyright Office uses the Compendium to state its policies.

Thaler appealed to the U. S. District Court for the District of Columbia, where District Judge Beryl A. Howell on August 3, 2023, held that the “Copyright Office acted properly in denying copyright registration for a work created absent any human involvement.” Judge Howell said copyright law “has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright.”

A three-judge District of Columbia appeals panel affirmed the Copyright Office’s ruling and Howell’s decision. “The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being,” said Circuit Judge Patricia A. Millett, writing for the court. In her decision, Millett ruled only on Thaler’s application as not conforming to the law, and not on broader constitutional issues raised by the Copyright Office and Thaler in court briefs.

“The Compendium reflects the agency’s longstanding view that copyright requires human authorship. It states that the Copyright Office ‘will refuse to register a claim if it determines that a human being did not create the work,’” the Copyright Office argued in its district court brief.

Millett also discounted Thaler’s argument that the Copyright Office’s human-authorship rule prevents copyright law from protecting any works made with artificial intelligence. “The rule requires only that the author of that work be a human being—the person who created, operated, or used artificial intelligence—and not the machine itself.”

The appeal from Thaler to the Supreme Court

In the petition for a writ of certiorari, Thaler’s attorney, Ryan Abbott, made several claims. Abbott argued that a “straightforward reading” of the Copyright Act results in the conclusion that “works without a direct, traditional authorial contribution by a natural person can be copyrighted.”

“The U.S. Copyright Office, however, imports words into the Act that Congress never drafted and requires vague elements of human authorship that arose from the Copyright Office itself—without statutory support. Indeed, the Copyright Act explicitly permits nonhuman authorship,” Abbott concluded.

Among other arguments, Abbott believed the appeals court decision, if left standing, would undermine the definition of “author” in Burrow-Giles Lithographic v. Sarony, resulting in photographs losing their copyright protection.

In his brief, Solicitor General John Sauer repeats the appeals court’s argument that the Copyright Office’s Compendium “reflects the agency’s longstanding view that copyright requires human authorship” and the Copyright Office “will refuse to register a claim if it determines that a human being did not create the work.” Sauer cited the Burrow-Giles Lithographic v. Sarony precedent.

Sauer also concurred with Judge Millett’s opinion that “adhering to the human-authorship requirement does not impede the protection of works made with artificial intelligence.” Sauer believed the case focused on the narrow question of whether an AI machine can be considered as an “author” of a copyrightable work. “It does not present any broader question about the eligibility for copyright registration of works created using AI,” he concluded.

In the end, the Supreme Court agreed with Sauer and Court of Appeals for the District of Columbia by denying Thaler’s appeal.

Scott Bomboy is the editor in chief of the National Constitution Center.

Arguments are scheduled for March 24, 2026 in the U.S. District Court for the District of Massachusetts before Judge William G. Young in Equal Means Equal v. Trump. In a complaint filed in April 2025, Equal Means Equal (EME), a project from the non-profit Heroica Foundation, is suing the U.S. government over the constitutionality of the Military Selective Service Act.

EME claims that the Act discriminates against women by requiring only men to register for the draft. Its argument rests on two pillars: the Fifth Amendment’s Equal Protection Clause and the Equal Rights Amendment, which EME maintains, is already a ratified part of the Constitution.

Government attorneys want Judge Young to dismiss the case, pointing to a Ninth Circuit decision last year about the Selective Service Act. In Valame v. Trump, a three-judge panel rejected the claim that the ERA was ratified as the Constitution’s 28th Amendment; the case is currently on appeal. The administration also argues that a prior Supreme Court decision, Rostker v. Goldberg (1981), which upheld a male-only draft, defeats a constitutional argument to the contrary made by Equal Means Equal.

Background on the Equal Rights Amendment debate

In 1972, two-thirds of Congress approved the ERA amendment’s language as required under the Constitution’s Article V. Then it sent the ERA to the states for ratification, where 38 states’ votes were needed to formally add it to the Constitution. A joint resolution sent to the states placed a seven-year deadline (March 22, 1979) for the ratification process. In that period, only 35 states ratified the ERA amendment, and Congress extended the deadline by three years to the spring 1982. However, no other states had approved the ERA by the new deadline.

In recent years, Nevada (2017), Illinois (2018), and Virginia (2020) have voted to ratify the ERA, bringing the total to 38 (or the required ¾) of the 50 states. Five states, however—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—also voted to rescind their ratifications in the 1970s, raising the major and as-yet unaddressed constitutional question whether these recissions are legally valid.

On Dec. 17, 2024, the Archivist of the United States—the federal official responsible for ratifying new amendments— refused a request to add the ERA to the Constitution “due to established legal, judicial, and procedural decisions.” The Archivist cited opinions from the Justice Department’s Office of Legal Council in 2020 and 2022 that the ERA had legally expired and was no longer eligible for certification.

On Jan. 17, 2025, President Joseph R. Biden said that he believed the "Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment.” However, President Biden did not ask the Archivist to certify the proposed amendment to the Constitution, as required by law once the Archivist receives notice that that amendment has been ratified by three-fourths of the states.

Claiming in court the ERA is a ratified amendment

In Valame v. Trump (originally Valame v. Biden), Vikram Valame sued after claiming that he had lost an internship at the Nuclear Regulatory Commission I because he had not registered for the draft as required under the Selective Service law. The U. S. District Court for the Northern District of California ruled against Valame. The Ninth Circuit concurred in July 2025 and issued a written per curiam opinion on Nov. 4. 2025.

The Ninth Circuit rejected Valame’s allegation that a law requiring men, but not women, to register with the Selective Service System violated his rights under the Equal Rights Amendment. Valame, representing himself, had contended to the court that the ERA was ratified as the 28th Amendment to the Constitution.

“The ERA was not ratified by three-fourths of the States prior to the deadline set by Congress, June 30, 1982, and the Archivist of the United States did not publish or certify the ERA,” the Ninth Circuit concluded. “Therefore, the district court properly dismissed Valame’s claims under the ERA for failure to state a plausible claim.” It also ruled against his Equal Protection claim, citing Rostker v. Goldberg.

In Equal Means Equal, plaintiff Jacqueline Fenore and two other women were turned away when attempting to register for the draft because they were female. EME is now suing on their behalf, arguing that under the ERA, “equality of rights shall not be denied or abridged by the United States or by any state on account of sex.” The plaintiffs say that the ERA became part of the Constitution when Virginia ratified the amendment in January 2020.

“While there is some disagreement about the ERA’s validity because its ratification deadline expired before the last state ratified, many government officials and constitutional scholars believe the ERA is valid because the deadline is unconstitutional,” EME argues, pointing to Biden’s proclamation and arguments by professors Laurence Tribe and Kathleen M. Sullivan.

The plaintiffs also contend that Valame does not apply to their case, stating, “only a lawsuit filed by women on behalf of women can adequately represent the interests at stake for women.” They add that the Rostker v. Goldberg precedent is no longer controlling law, as it rested on the premise—now defunct—that women could not serve in combat roles.

The government’s argument

In Equal Means Equal, government attorneys point to prior court precedents and Valame v. Trump as reasons that the district court should dismiss the case. “To credit Plaintiffs’ ERA claim would require the Court to ignore Congress’s ratification deadlines and binding Supreme Court precedent,” they argue.

The government points to the Supreme Court’s decision in Dillon v. Gloss (1921), which upheld the inclusion of a seven-year ratification deadline by Congress for the 18th amendment, and to Coleman v. Miller (1939), which said that Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment.

The attorneys also leaned heavily on Illinois v. Ferriero (2023). In that case, a D.C. district court ruled that Illinois and Nevada “had not clearly and indisputably shown that the Archivist had a duty to certify and publish the ERA or that Congress lacked the authority to place a time limit in the proposing clause of the ERA.” The government also claims that the plaintiffs lack standing, meaning that they have not proven and did not state a claim for relief.

While the Equal Means Equal case moves forward, Vikram Valame is preparing his own appeal to the Supreme Court. In January 2026, he received an extension to file a petition for a writ of certiorari. Justice Elena Kagan approved the request.

Scott Bomboy is the editor in chief of the National Constitution Center.

The recent military actions in Iran by Israel and the United States has reignited a simmering constitutional debate: the ability of the president to use military force without prior congressional approval.

On Feb. 28, 2026, the joint attacks by Israel and the United States forces were met with counterattacks by Iran on other Middle East nations, as well as Israeli and American assets. Israeli and United States forces also killed Iran’s Ayatollah Ali Khamenei, and other Iranian leaders.

Almost immediately, some members of Congress claimed President Donald Trump’s actions violated the Constitution’s Article I, Section 8, Clause 11, which grants the power to “declare War’ to Congress, and a congressional act from 1973, the War Powers Resolution.

“Trump’s military attack on Iran is illegal and unconstitutional. It was not approved by Congress and holds dangers for all Americans,” said Sen. Ed Markey (D-Mass.) in a statement that echoes other critics’ comments. House Speaker Mike Johnson (R-La.) responded by calling these critiques of presidential power a “frightening prospect.”

As recently as early January 2026, the same debate was ongoing after United States military forces captured Venezuela’s president, Nicolas Maduro, and his wife, Cilia Flores, in Caracas, and removed them to the United States to stand trial on narco-terrorism, cocaine-importation, and weapons charges.

The Declare War Clause: Text and History

The Founding generation looked to divide the responsibility of declaring and conducting war between Congress and the president. Congress’s power to authorize military actions is rooted in the Constitution’s Declare War Clause. The clause is among the enumerated, or listed, powers granted to Congress by the Constitution in Article I, Section 8. The president’s commander in chief powers emanate from Article II, Section 2, which states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Beginning in the early republic, presidents have used military force in smaller actions without explicit congressional approval, including forays into West Florida, Mexico, and the Caribbean. However, many presidents still sought congressional authorization for the use of military force. President Thomas Jefferson took action against pirates in the First Barbary War, starting in 1801, with congressional approval by statute. During the Second Barbary War in 1815, Commodore Stephen Decatur attacked Algiers under powers authorized by Congress. And, with the War of 1812, Congress issued a formal declaration of war against Great Britain. In 1846, Congress similarly declared war against Mexico.

Congress and the War Powers Resolution

Congress has not approved a formal declaration of war since World War II. Since then, the use of American forces in overseas combat took a different turn. In Korea, President Harry Truman claimed he was taking part in a United Nation’s police action that did not need congressional approval. He also argued that Congress had implicitly approved of his actions by continuing to fund the military. However,  some congressional leaders such as Sen. Robert Taft objected, claiming Truman was declaring “a de facto war . . . without consulting Congress and without congressional approval.” Truman’s State Department cited more than 80 past incidents of presidents deploying forces overseas without express congressional authorization. The Korean conflict went on without explicit congressional approval.

The Vietnam conflict was also not a declared war, but Congress approved a joint resolution requested by President Lyndon B. Johnson in 1964 after the Gulf of Tonkin incident—the Gulf of Tonkin Resolution. The fallout from the Vietnam War and ongoing conflicts between President Richard Nixon and Congress led Congress to enact the War Powers Resolution (1973) over President Nixon's veto. (President Nixon argued that the War Powers Resolution was both unconstitutional and unwise.)

The War Powers Resolution required that, in the absence of the authorization for the use of military force by Congress, a president must report to Congress within 48 hours after introducing military forces into hostilities and must end the use of such forces within 60 days unless Congress permits otherwise. The War Powers Resolution also requires the president “in every possible instance” to consult with Congress before introducing the military into imminent hostilities. It also gives Congress the ability to terminate the use of force used in unauthorized hostilities at any time by concurrent resolution of the House and Senate. (These resolution powers were later modified by a Supreme Court decision in 1983.)

Actions taken after the War Powers Resolution was passed

Since 1973, presidents have dealt with the War Powers Resolution in several ways. In 1993, President Bill Clinton ordered U.S. military forces to take part in NATO activities in Bosnia, including the use of air strikes. In 2011, President Barack Obama authorized U.S. military operations in Libya including air strikes, stating the actions were not “hostilities” under the language of the War Powers Resolution that required formal approval from Congress. But in 2013, Obama asked Congress to approve intervention in the Syrian civil war; Congress then declined to act. In 2018, President Trump ordered airstrikes in Syria and, in 2020, an airstrike in Iraq that killed General Qasem Soleimani, the leader of Iran’s Revolutionary Guards. Trump cited an authorization for the use of military force (AUMF) issued 2002 during Bush administration within the purview of his Commander in Chief authority.

In 2021, President Joe Biden cited the AUMF of 2002 and his Article II powers in taking military actions against Iran-backed militant groups in Iraq, Syria, and Yemen. In June 2025, the United States attacked nuclear facilities in Iran during that nation’s conflict with Israel. President Trump submitted a War Powers Resolution report to Congress. After the capture of Maduro, Trump also filed a report as required to Senate president pro tempore Charles Grassley. In the above cases, there were stated objections from members of Congress and others to the presidential use of war powers without congressional consultation and approval.

The current debate in Congress

According to media reports, President Trump has filed a 48-hour report with the Senate about the latest military actions in Iran. He also has stated publicly that military actions in the conflict could last for some time.

So far in Trump’s second term, Congress has failed to advance a resolution in response to the president’s actions in this context. On Jan. 14, 2026, the Senate failed to approve a proposed joint resolution related to the situation in Venezuela by one vote. A similar vote failed last June related to Iran. Currently, a resolution about Iran sponsored by Sen. Tim Kaine (D-Va.) and Sen. Rand Paul (R-Ky.) is up for consideration.

While the gravity and scope of the Iran attacks could lead to the resolution narrowly passing the House and the Senate, it is subject to a veto by President Trump. In that case, the Senate and the House would need two-thirds majorities to override the veto under Article I, Section 7, of the Constitution. Congress did approve a resolution in May 2020 limiting Trump’s ability to act against Iran without congressional consent a U.S. drone strike killed Qasem Soleimani, head of the Islamic Revolutionary Guard Corps Quds Force. The Senate failed to override the veto in a 49-44 vote.

The basic constitutional debate about the War Powers Resolution is unlikely to fade away. In 1973, President Nixon said in his veto message a constitutional amendment was needed to resolve the matter. Still others are convinced the resolution is fully within the powers of Congress.

One person who offered an early view in 1975 was a young assistant attorney general, Antonin Scalia, who wrote a opinion for Justice Department’s Office of Legal Counsel about President Gerald Ford’s powers under the resolution to evacuate Americans from Vietnam. Scalia believed the resolution “was intended only as an expression of Congress’ interpretation of the Constitution.”

So far, the Supreme Court has not considered the matter, but its ruling in INS v. Chada (1983) extended the president’s veto power to current resolutions of Congress such as war powers resolutions. The Court found that concurrent resolutions that approved or disapproved of presidential action were unconstitutional because at the time they did not require their presentation to the president.

Scott Bomboy is the editor in chief of the National Constitution Center.

Thousands of students have taken part in protests at public schools in Florida, Pennsylvania, Virginia, Iowa, California, Arkansas, and Texas against U.S. Immigration and Customs Enforcement (ICE) enforcement actions. In some cases, students have faced suspensions for walking out of school. In others, their schools have collaborated with local law enforcement to allow peaceful off-campus protests with no suspensions.

News reports on these protests have frequently mentioned the constitutional rights of students who attend publicly funded schools. These rights are defined by two landmark Supreme Court cases from the mid-twentieth century.

Political free speech for some (but not all) students

Courts have held since the late 1960s that public secondary school officials can regulate student protests on campus that they view as disruptive. But not all protests can be regulated by schools, especially those that express “pure speech.”

First Amendment protections rarely extend to private schools. And even within the public system, a clear legal divide exists between the restricted rights of high schoolers and the broader liberties afforded to college students.

Unlike high schoolers, public university students enjoy the full speech protections afforded to adults. However, their right to protest is still subject to the standard "time, place, and manner" restrictions that apply to any public forum.

The foundational case for public secondary schools is Tinker v. Des Moines Independent Community School District (1969). In his 7-2 majority opinion, Justice Abe Fortas said, “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Fortas’s quote is central to any discussion of students’ speech rights in public schools. Since 1969, his ruling has been repeatedly cited by the Supreme Court when defining the boundaries of student expression.

In December 1965, at the height of the Vietnam War, three students, including Mary Beth Tinker, a 13-year-old student at Warren Harding Junior High School in Des Moines, Iowa, wore black armbands to school to protest the war. They were all suspended.

Fortas said that students’ free speech rights didn’t extend to conduct that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” But he also held that silent protests—such as wearing armbands—were constitutionally permitted. “Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’ The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners,” Fortas concluded.

The Tinker decision cited a famous Supreme Court decision from 1943, West Virginia v. Barnette, which allowed public school students to decline to pledge allegiance to the American flag on religious grounds. In his majority opinion, Justice Robert Jackson wrote that school officials had “important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights.”

In his dissent, Justice Hugo Black called the Barnette majority decision “the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary” if students could “defy and flout orders of school officials to keep their minds on their own schoolwork.”

Beyond Tinker and West Virginia v. Barnette

While Tinker and Barnette set the stage, later decisions have clarified how students' First Amendment rights apply to present-day challenges such as social media and student-led journalism.

In 1988, the Supreme Court decided in Hazelwood v. Kuhlmeier that public high school officials could censor a student-run newspaper's planned stories on divorce and teenage pregnancy. Writing for the majority, Justice Byron White said that “a school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.” In his dissent, Justice William Brennan concluded that the majority had ignored Tinker, and indeed, that its opinion “teach[es] youth to discount important principles of our government as mere platitudes.”

Two years earlier, the Court had determined that public school students cannot claim First Amendment protection for using vulgar language on school grounds. The Supreme Court ruled in Bethel School District v. Fraser (1986) that a student who used sexually explicit language at a school assembly wasn’t protected by the First Amendment. “Under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school,” said Chief Justice Warren Burger in the majority decision.

The Supreme Court further narrowed student speech rights in 2007 with Morse v. Frederick, a case that tested whether schools could censor messages promoting illegal drug use. There, the justices considered a student who unfurled a 14-foot 'Bong Hits 4 Jesus' banner during a school-supervised event. After the principal confiscated the banner and suspended the student, a divided Court said that the First Amendment allows schools to prohibit speech that reasonably appears to promote illegal drug use.

In his majority opinion, Chief Justice John Roberts referenced Tinker, Hazelwood, and Bethel School District, concluding that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” Justice Clarence Thomas argued that Tinker should be overturned, while Justice John Paul Stevens wrote that punishing a student for a “nonsense banner” violated the First Amendment because it effectively punished the student “for expressing a view with which it [the school] disagreed.”

Recent cases and broader exceptions

In 2021, the Supreme Court considered whether schools can punish students for private, off-campus speech. In Mahanoy Area School District v. B.L., the justices held that a student’s off-campus Snapchat outburst did not warrant a suspension, even though it targeted a school-related activity like cheerleading.

In his 8-1 majority opinion, Justice Stephen Breyer said that schools have a substantial interest in regulating certain kinds of off-campus conduct. But In B.L.’s specific case, Breyer continued, her conduct did little “to suggest a substantial interference in, or disruption of, the school’s efforts to maintain cohesion on the school cheerleading squad.”

However, the Court made clear that there were some areas where school administrators could discipline students for their off-campus conduct, including “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students.”

For high school students who have been walking out without their schools’ consent, legal experts disagree on the scope of their First Amendment protection. It’s clear under Tinker that schools can discipline students for leaving class without permission. But if administrators impose harsher-than-normal penalties because of the protest’s message, there could be serious ramifications.

In a recent blog post, Adam Goldstein from the Foundation for Individual Rights and Expression (FIRE) noted this basic constitutional concept: “If a school does choose to discipline a student for walking out to join a protest, it has to do it consistently with how it would punish any other student for cutting class. Punishing a student more harshly because they wanted to express their opinion would be viewpoint discrimination, which is never permissible under the First Amendment.”

Student’s free speech rights may soon be tested yet again in the courts. But as Freedom Forum noted last year, “While students’ free speech rights in school aren’t absolute, the Supreme Court consistently has reiterated that students are people under the Constitution and possess First Amendment rights.”

Scott Bomboy is the editor in chief of the National Constitution Center.

Standing before an enraptured crowd at the Massachusetts Anti-Slavery Society’s Independence Day celebration in 1854, William Lloyd Garrison––the Society’s founder and one of the nation’s leading white abolitionists––brandished a copy of the U.S. Constitution. Yet this was to be no hagiography of the Founders’ work; rather, echoing the fiery rhetoric of the Old Testament, Garrison labeled the Constitution “a covenant with death” and “an agreement with hell.”

His words rang in stark opposition to the position taken by Frederick Douglass two years prior. In his famous “What to the Slave is the Fourth of July” Speech, Douglass emphasized the emancipatory potential of the Constitution, calling it “a GLORIOUS LIBERTY DOCUMENT.”

Ironically, the two men, whose constitutional interpretation came to embody rival flanks within the American abolitionist movement, were once political allies and close friends. Douglass began his career as Garrison’s most able protégée––traveling to cities within the Garrisonian abolitionist circuit to share the horrors of slavery.

However, as Douglass matured, he chafed under Garrison’s demands for ideological conformity and his paternalistic attitude. The relationship began to sour in the late 1840s, when Douglass left Garrison’s Liberator newspaper to start his own publication, The North Star.

Yet it was their acutely different perspectives on the place of the Constitution within the abolitionist movement that caused the ultimate schism. While Garrison believed that the Constitution wove racism into the fabric of American government and could only be countered with moralistic appeals to the body politic, Douglass held that the Constitution could be used as a tool to achieve racial justice. In a subsequent address, Douglass described the nation as a ship, with the Constitution as its compass––while the American vessel may be led astray through the governance of “mean, sordid, and wicked” men, the constitutional compass remained steadfastly pointed towards justice.

This dispute, legislated on the front pages of their respective newspapers, resulted in what historian David Blight termed Douglass’s “excommunication” from “the orthodoxy of the Garrisonian church.”

In life, the two men never fully reconciled; but is it possible, as we approach the semi quincentennial and reflect on our founding charter, to harmonize the discordant perspectives of these two prolific activists? Is it possible for the Constitution to be both glorious and hellish? And if so, how might “We the People” ensure the former and protect against the latter?

The Crowd vs. The Mob

W.E.B. Du Bois’s 1920 book Darkwater might help us mediate these two extremes. Written against the backdrop of 1919’s Red Summer, in which white vigilante mobs descended on Black communities across the country and murdered innocent civilians, Du Bois––like Douglass and Garrison before him––questioned whether the moral rot of racism could ever be excised from American politics. Put simply: was the anti-Black (or really, anti-Other) mob endemic to the American project or could another political paradigm be found to redeem the nation?

His search for a way up from this “nadir” in American race relations led Du Bois to identify what political philosopher Robert Gooding-Williams describes as two distinct expressions of group politics: the Mob vs. the Crowd.

To Du Bois’s readers, the word “mob” would immediately connote the southern lynch mob––lawless, violent, and spontaneous. But Du Bois complicates this easy association between the Mob and a brutish or “backcountry” southern mentality. For Du Bois, the freneticism of the Mob is premised on a much more stable ideology: the politics of exclusion.

To defeat the Mob, he writes, “we must get rid of the fascination for exclusiveness” and eliminate the “fiction of the Elect and the Superior.” Thus, the defining feature of Du Bois’s mob is not its comportment, but its composition. A civil, or even genteel, mob is still a mob if it is premised on the exclusion and subjection of the “other.” Put another way, the Supreme Court in Plessy v. Ferguson expressed the same mob mentality as the 1919 rioters. The latter might map more easily onto our conceptions of a “mob,” but Du Bois emphasizes that neither etiquette nor proceduralism absolves exclusionary behavior.

In contradistinction to the Mob, the Du Boisian Crowd sees heterodoxy as its strength and acts out of a conviction that is, at once, deliberative and impassioned. Gooding-Williams articulates that the Crowd is “marked by a receptivity to the unfamiliar possibilities and dispositions that the group’s strangers represent.”

In other words, the Crowd is defined by its willingness to include the marginalized and uplift the voice of the “other” within the political process. Importantly, this expansive politics is not just for the benefit of those targeted by the Mob; rather, in embracing a Crowd-politics, we allow for the flourishing of humankind’s “infinite possibilities” ––to the shared benefit of the whole society. The Crowd allows us to “discover each other” and see in the “stranger,” a collaborator in the national project.

The Constitution is a revolutionary document: establishing, for the first time in modern history, a nation founded on the absolute sovereignty of the people. The question has always been: are these privileges and protections shared freely amongst the Crowd or hoarded by the Mob? Are we to be a herrenvolk or a participatory democracy?

Thus, understood through the lens of Crowd politics, the Constitution is a “glorious liberty document”; yet when authority is ceded to the interest of the Mob, the Constitution does portend death––both political, and often literal––for the marginalized.

The Mob and The Crowd at 250

In 1790, James Wilson, an oft-forgotten but essential architect of the Constitution, gave a series of “Lectures on Law” at the University of Pennsylvania. There, he articulated that, for “We the People” the Constitution is “as clay in the hands of a potter.” Understanding that they did not have a monopoly over constitutional wisdom, Wilson and his peers left it to future generations to “preserve, to improve, [and] to refine” the document. And while many Founders could not imagine a multiracial democracy, courageous Americans throughout our nation’s history have taken this fractured clay and molded it toward a more just Union.

Through the Reconstruction Amendments, the 19th Amendment, the Civil Rights Act of 1964, the Voting Rights Act of 1965, and countless other nudges towards equality, women and men have fought against the political violence of the Mob. But progress is not a foregone conclusion––the same document that now guarantees minority political rights was once used by the Taney Court and its pro-slavery supporters to classify Black Americans as property. And ongoing debates over the Constitution’s text and history further evince the contingency of the document.

One could frame the Constitution’s ambivalent nature as a failure of the Founders to decisively resolve important constitutional questions, but one could also choose to see it as a testament to the vital role that “We the People” are called to play in the maintenance of our democracy. The Constitution is not self-actualizing––neither for equality nor for exclusion.

Madison writes in Federalist 48 that “parchment barriers” alone are defenseless against “the encroaching spirit of power”; similarly, while John Adams appreciated the ingenuity of the Constitution, he maintained that it was only viable in the hands of “a moral and religious people.” Most tangibly, the Founders at the Convention ensured that “We the People” would have the power to perpetually rewrite our national framework through the Article V amendment process. On this regard, the Founders were clear: the people, not ink and paper, imbue the Constitution with its ethos and authority. Consequently, we decide whether to use the Constitution to advance a Crowd- or Mob-politics.

Seeking inspiration in the Constitution’s text and principles

As we approach our 250th anniversary, we should take this responsibility seriously. We need not subscribe to all of the Founders’ specific views. But we should still seek inspiration in the Constitution’s text and principles, which invite us to aspire to the civic ideals of active, engaged, and informed citizenship––ideals championed by the Founders at the Convention and through the ratification process, even as they failed to extend the full promise of those principles to many Americans in their own time. If we want the Constitution to support the vitality of the Crowd, our public servants must seek to apply the privileges of the Constitution to all citizens––regardless of race, sex, ethnicity, or religion.

While Douglass and Garrison never rekindled their once-deep friendship, Douglass respected Garrison’s commitment to racial justice; and when Garrison died in 1879, Douglass was chosen to eulogize him. In the address, Douglass reflected on the herculean task Garrison had undertaken in challenging the “mighty system of slavery,” which had metastasized such that it infected every institution in America––the Church, the government, the economy. Most importantly, Douglass articulated that the system had “forced itself into the Constitution.” Yet while well-meaning, Douglass mistakenly removes the central role of human agents in bending the Constitution towards human bondage. Slavery did not force itself into our founding charter, people put it there; and likewise, people removed it. At both its zenith and nadir, the Constitution is animated by human action.

Put simply, whether we rise to the limitless possibilities of the Crowd or succumb to the Mob is entirely in our hands. It is both a hellish task and a glorious inheritance.

Trey Sullivan is a Content Fellow at the National Constitution Center and a PhD candidate in History at the University of Cambridge, where he is a Marshall Scholar.