When President Dwight Eisenhower in 1953 appointed Earl Warren, the former governor of California, chief justice of the United States, Warren inherited a divided and fractious court. Richard Kluger, author of the brilliant history of the Brown decision, Simple Justice, described the court as “perhaps the most severely fractured court in history.”

Brown was argued twice in the high court, first in 1952 when Fred Vinson was chief justice, and again in 1953 after Vinson’s death and Warren’s arrival. Warren, a Republican, was not only a three-term former governor but had also served as California’s attorney general and had been involved in local government offices.

Historians tell us that Warren wanted a unanimous opinion in Brown and achieving it required all of his persuasive and political skills. Up until the last moment, it appeared that Justice Stanley Reed would be the lone dissenter. But Reed, and no one is certain why, changed his prior position and joined his colleagues in a unanimous decision.

Chief Justice John Roberts Jr. has an ideologically divided court and does not have the political pedigree of Warren. Roberts’ persuasive skills were honed in a very different arena, as a successful appellate court lawyer.

But two constitutional law professors—brothers Akhil Amar of Yale Law School and Vikram Amar of UC Davis School of Law—argue in an amicus brief in the recently argued birthright citizenship challenge, that a unanimous decision against the Trump administration is warranted here.

The citizenship case, Trump v. Barbara, challenges President Donald Trump’s 2025 executive order that, if the justices approve, would change Americans’ more than a century-old understanding of birthright citizenship. That understanding is that if you are born in America and “subject to the jurisdiction thereof” ( the text of the Citizenship Clause in the 14th Amendment and a 1952 statute), you are an American citizen. The Trump executive order makes citizenship dependent on the legal status of a parent or parents.

The justices have at least two paths to affirming the common understanding of the Citizenship Clause if they rule against Trump. They can rely on the actual text of the clause or on a 1952 federal law incorporating that text.

The Amar brothers urge the court to rule against Trump by answering the constitutional question. Federal laws, like the 1952 statute, may be repealed or amended. A constitutionally based ruling ensures that a future Congress could not try to retroactively repeal the 1952 act, they explain. And, if the court rules with the kind of breadth and depth as it did in Brown, they wrote, it also would be an important reminder to all citizens of their rights and their responsibilities to each other.

The Amars conclude by explaining why they believe this case is “the most important case of the century (so far?).” They offer three reasons but perhaps most importantly because it is “uniquely fundamental.”

“The basic issues at stake go to the very foundation of the Constitution. At root, citizenship is the right to have rights, and the right to belong. All constitutional issues are important, but few rival the constitutional issues in this case: Who is an American?”

For that reason and others, they wrote, they hope the court will rule not just correctly, “but will do so for the best and deepest reasons—ringingly—and will also do so unanimously, at least in outcome, and ideally in exposition.”

After the April 1 arguments, a unanimous decision did not seem likely for either Trump or the challengers, but a majority asked many more skeptical questions of Trump's lawyer. Only two justices, Clarence Thomas and Samuel Alito, appeared somewhat receptive to the Trump Administration’s arguments in defense of its reinterpretation of the Citizenship Clause.

But much can happen between the time arguments end and a decision is issued. Roberts himself reportedly changed his position during deliberations on the first Obamacare challenge. And Justice Stanley Reed, for whatever reason, did the same in Brown. Time will tell.

Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.

Penn’s basic story is well known. Born to Admiral Sir William Penn, a prominent naval officer and politician, the younger Penn attended Christ Church College at Oxford, where he was expelled because he refused to conform to Anglican worship requirements. Penn then studied in France and read law at Lincoln’s Inn back home, where he did not complete his legal training. Penn soon became a leader in the Society of Friends movement, now known as the Quakers.

Penn arrived in America in late 1682 after receiving a large land grant from the crown as a repayment of debt to his father. As proprietor, he established a colony named after himself with a liberal form of government. In his lifetime, Penn only visited the colony of Pennsylvania twice, and upon departing for Great Britain in 1701, he and the colony’s assembly established the Charter of Privileges. The 1701 charter foreshadowed parts of the federal constitution approved in Philadelphia in September 1787.

Penn’s legacy as a legal troublemaker

After his conversion to Quakerism in 1667, Penn became a prominent spokesperson for the movement. In return, Penn was imprisoned four times. The crown and Parliament did not tolerate religious acts that did not conform to the Anglican church. In 1664, Parliament passed the Conventicle Act, which barred groups of more than five people from gathering for religious meetings not approved by the Church of England.

By 1669, Penn had published several religious essays, including “No Cross, No Crown,” which challenged religious conventions held by the state church. Penn spent nine months in the Tower of London until James the Duke of York (the brother of King Charles II) secured his release. Penn and a fellow Quaker, William Mead, were then arrested for violating the Conventicle Act.

In 1670, Penn preached on the street outside of the locked Gracechurch Street Meeting House in London to an assembled group of between 300 and 400 people. Mead attended the service. Penn and Mead were brought before the court at the Old Bailey—overseen by a recorder and the mayor of London—on charges that they “unlawfully and tumultuously did Assemble and Congregate” to “Preach and Speak.” They had also infuriated the court by refusing to remove their hats in the courtroom.

Over the next four days, Penn sparred with the court over the scope of the Conventicle Act. Penn admitted in court that he did preach to a crowd, but he contended that the Act only barred “seditious” meetings. The court’s instructions to the jury stated that all meetings not approved by the church were inherently seditious, their content notwithstanding.

In his closing statement, Penn asked the jury to look beyond the court’s instructions. “However, this I leave upon your consciences, who are of the jury (and my sole judges,) that if these ancient fundamental laws, which relate to liberty and property, (and are not limited to particular persuasions in matters of religion) must not be indispensably maintained and observed, who can say he hath right to the coat upon his back?”

The jury returned a verdict that Penn and Mead had conducted a public meeting but declined to characterize it as unlawful. Despite numerous threats from the court, the jurors held firm. At one point, as the jury came under attack, Penn invoked the Magna Carta on its behalf. “It is intolerable that my Jury should be thus menaced: Is this according to the Fundamental Laws? Are not they my proper Judges by the great Charter of England?” The jury finally came back with a verdict of not guilty. The jury was fined by the court and jailed until payments were made.

One juror, Edward Bushel, petitioned for a writ of habeas corpus with the Court of Common Pleas to challenge his imprisonment. In Bushel’s Case, Chief Justice Sir John Vaughan ruled that jurors could not be fined or jailed for disagreeing with a judge’s assessment of the evidence. Bushel is considered a landmark case in establishing the independence and integrity of the jury trial system.

Penn’s other impact on the Founders

The Charter of Privileges of 1701  is a major part of Penn’s constitutional legacy. Penn and his colonial assembly agreed on a “frame” of government in 1683 that functioned as an early constitution, after the assembly had rejected a similar frame proposed by Penn in 1682.

In the preface to the 1682 frame, Penn  set out the fundamental goal of his charter. “I know what is said by the several admirers of monarchy, aristocracy and democracy, which are the rule of one, a few, and many, and are the three common ideas of government, when men discourse on the subject. But I chuse to solve the controversy with this small distinction, and it belongs to all three: Any government is free to the people under it (whatever be the frame) where the laws rule, and the people are a party to those laws, and more than this is tyranny, oligarchy, or confusion.” The 1683 version  broadened assembly participation beyond Quakers and  strengthened the legislature’s independence.

After his first return to England in 1684, Penn experienced considerable upheaval in his public and personal lives. His patron, James the Duke of York, became King James II in 1685, but he was deposed in the Glorious Revolution just three years later. The new rulers of England, William and Mary, took away Penn’s proprietorship in 1692 and then restored it in 1694. Penn’s first wife died and he remarried quickly. He also became increasingly disconnected from colonial affairs in Pennsylvania.

In 1696, William Markham, the acting governor of Pennsylvania (and Penn’s cousin) proposed a revised frame of government that gave the lower assembly more power to initiate laws. Penn himself did not endorse the changes. On Penn’s return in 1699 to America, the need to reconcile the two frames of government became a concern, especially with the threat of the Parliament revoking Penn’s proprietorship in 1701.

The Charter of Privileges  protected freedom of conscience and expression directly. “No People can be truly happy, though under the greatest Enjoyment of Civil Liberties, if abridged of the Freedom of their Consciences, as to their Religious Profession and Worship,” it read.

The charter also provided for a government with separation of powers, eliminated any public taxes that supported churches, allowed any Christian male to hold office without already owning property, and ended forced attendance at religious services. The legislature became more independent once it gained the power to initiate its own laws, and it embraced the concept of the consent of the governed, even if Penn retained a veto. Penn left Pennsylvania in late 1701 to address financial problems and the threat to his proprietorship. He never returned, and he died in 1718 in England after years of poor health.

Penn’s constitutional legacy continued long after his departure. In 1735, attorney Andrew Hamilton cited Penn’s sedition case in his defense of John Peter Zenger, who was found not guilty of libel in a landmark freedom of the press decision. The decision established a core principle later enshrined in the First Amendment that true statements criticizing the government cannot be punished.

In 1789, when the House of Representatives considered adding the Bill of Rights to the Constitution, Rep. Theodore Sedgwick of Massachusetts sought to strike the word “assemble” from what became the First Amendment. But Rep. John Page of Virginia invoked the Penn case of 1670 to resounding effect, and the House, which needed no reminder, rejected Sedgwick’s motion by a wide margin. The right of assembly entered the Constitution with Penn’s shadow upon it.

Also in 1825, Thomas Jefferson wrote to the American Philosophical Society about a ceremony honoring Penn’s arrival in America as “so justly due to the greatest lawgiver the world has produced, the first in either ancient or modern times who has laid the foundation of government in the pure and unadulterated principles of peace of reason and right” who understood “the only legitimate objects of government, the happiness of man.”

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

Otis spent the decade before the war making the case in courtrooms and newspapers that Parliament had no right to tax the colonies, since colonists could not elect their own representatives to it.

The Otis family had lived in the Province of Massachusetts Bay for five generations when James Otis Jr. was born in West Barnstable on Feb. 5, 1725. He was the second of 13 children born to his father, James Otis, and his mother, Mary Allyne, and the first to survive infancy. His sister Mercy, the poet and playwright, and his brothers Joseph and Samuel would play an important part in the coming revolution.

The Otis family regarded itself as quiet but important characters in the great drama of early American history. According to an 1848 family history, they may have lacked “a line of illustrious names,” but they “partook in the perils of founding and defending this country, in times when courage, constancy, and patience were indeed common virtues.” By the time his namesake was born, James Otis Sr. was serving in the Massachusetts House of Representatives for Barnstable and managing a successful law practice. He took care that Otis Jr. met the Latin, Greek and mathematics requirements for admission to Harvard College, though a 19th-century historian, Alice Brown, later described the boy as “brilliant, erratic, no less a genius in capacity than in temperament. A creature of mental impulse, he nevertheless carried the ballast of reverence for exact study.”

Otis Jr. graduated from Harvard in 1743 and studied law in Boston under fellow Harvard alumnus Jeremiah Gridley. A local lawyer remarked that he “had never known a student in law so punctual, so steady, so constant and persevering” as Otis Jr., praise which John Adams, another of Gridley’s students, would later echo. He was admitted to the bar in 1748 and moved his law practice from Plymouth to Boston in 1750.

Otis Jr. established his reputation in the wider community when, in February 1761, he delivered a four-hour speech at Boston’s Old State House condemning British trade policy. The scene was exceptionally dramatic: his rivalry with the presiding judge Thomas Hutchinson was well known, and he was pitted against his mentor, Gridley, who defended Britain’s arbitrary use of general search warrants (known as “writs of assistance”) against the colonists.

Otis Jr. was still a young man at the time; a witness described him as a “plump, round-faced, smooth-skinned, short-necked, eagle-eyed politician” when he rose to the lectern that day. But his arguments against arbitrary power would reverberate through the colonies, showing that Americans might protest not only higher taxes but also the entire structure of British imperial power. He declared that writs of assistance arising from “the privilege of the House” were null and void even if Parliament had authorized them because they violated the natural right that all citizens possess. “It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book,” he told the crowd.

According to Adams, Otis was “a flame of fire” that day. “American Independence was then and there born,” he wrote. “Every man of an immense crowded audience appeared to me to go away, as I did, ready to take up arms against Writs of Assistance.”

Otis Jr. was elected to the provincial legislature of Massachusetts in May 1761. The following spring, he published "A Vindication of the Conduct of the House of Representatives of the Province of Massachusetts Bay," a pamphlet that defended legislators against the governor’s accusations that they had improperly refused to fund a British military expedition. Echoing his speech in Boston, Otis Jr. argued that the power to tax belonged exclusively to the elected representatives of the people, a right that was no less available to colonists than to Englishmen born in Britain. “It would be of little consequence to the people whether they were subject to George or Louis, the king of Great Britain or the French king,” Otis Jr. wrote, “if both were as arbitrary as both would be if both could levy taxes without parliament.”

Once a “brilliant, erratic” boy seeking admission to Harvard, Otis Jr. was by this time one of the most prominent voices for colonial rights in North America. When the Stamp Act Congress convened in New York City in October 1765, uniting delegates from nine colonies to respond to newly imposed taxes by Parliament, Adams described Otis Jr. as the “soul” of the body. In its crowning document, the Declaration of Rights and Grievances, the Congress proclaimed that colonists possessed all the rights of Englishmen and that “no taxes ever have been, or can be constitutionally imposed on them, but by their respective legislatures.” Though the phrase “no taxation without representation” had been circulating in the colonies for some time, Otis had done as much as any single figure to bolster its intellectual and legal foundations.

“His influence at home in controlling and directing the movement of events which led to the War of Independence was universally felt and acknowledged,” according to the Encyclopaedia Britannica, “and abroad no American was so frequently quoted, denounced, or applauded in parliament and the English press before 1769 as the recognized head and chief of the rebellious spirit of the New England colonists.”

The year 1769 marked the end of Otis Jr.’s celebrated presence in public life. After a violent altercation with a tax collector left a gash on his head, peers observed that Otis Jr., who had perhaps already been suffering from mental illness, now “ramble[d] and wander[ed] like a ship without a helm.” His decline left him largely unfit to continue his law practice.

In 1771, he left Boston to live in the Massachusetts countryside with friends and family. He had already burned most of his private papers when he died on May 23, 1783, struck by lightning while he watched a thunderstorm from a friend’s doorway in Andover. His body lies today near Paul Revere, Samuel Adams, and John Hancock in the Granary Burying Ground in Boston.

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

Resources

John Adams to Hezekiah Niles, 14 January 1818, in Niles’ Weekly Register, vol. 13, H. Niles, ed. (Baltimore: Franklin Press, 1817), 361-363.

"John Adams’s Reconstruction of Otis’s Speech in the Writs of Assistance Case," in The Collected Political Writings of James Otis, ed. Richard A. Samuelson (Indianapolis: Liberty Fund, 2015), 11–4. http://oll.libertyfund.org/titles/2703

Alice Brown, Mercy Otis Warren (New York: Charles Scribner’s Sons, 1896), 25.

Horatio N. Otis, “Genealogical and Historical Memoir of the Otis Family,” New England Historical and Genealogical Register, vol. 2 (1848), 281.

Clifford K. Shipton, “James Otis,” in Sibley’s Harvard Graduates, vol. XI, 1741-1745 (Boston: Massachusetts Historical Society, 1960), 247-48

The name of the proposed state senate bill is SF 4114. It was introduced on March 4, 2026, and it was referred to the Committee on Judiciary and Public Safety for consideration. It states that Minnesota voters in the 2026 general election should decide the following question: “Shall the Minnesota Constitution be amended to state that artificial intelligence does not have the right to free speech?”

The issue at hand

The coalition of lawmakers is presenting SF 4114 as part of a package of proposed laws that attempt to rein in perceived problems related to AI applications. One proposed bill seeks to ban the use of AI chatbots by minors under the age of 18. Another Minnesota senate bill would require businesses to disclose that an individual is communicating with an artificial intelligence agent and offer the chance to interact with a human instead. (Other states have also pursued similar laws.)

The lawmakers’ efforts to regulate speech attributed to AI applications has drawn a good deal of attention within the state and outside of it.

In one editorial, Sen. Erin Maye Quade, a sponsor of SF4114, defended criticism of the bill. “The First Amendment protects human beings from being punished by the government for their speech. AI programs aren’t people, they are platforms built by people,” she wrote.

Quade cited the example of a lawsuit filed after a Florida teen’s suicide that claimed an AI chatbot took an active role in his death. Character.AI, the company that owned the chatbot, claimed the chatbot’s speech was protected by the First Amendment. A federal court rule against the company’s free speech claims, and the lawsuit was later settled out of court.

“Do you want to live in a state where a tech billionaire can release an app that encourages your child to die by suicide and be protected from punishment by Minnesota’s Constitution? I don’t,” Maye Quade asked.

Maye Quade posed similar questions at a press conference that introduced the legislation. “The way that consumer-facing AI has been rolled out is a five-alarm fire for our society,” Quade said in a report from The Center Square. “It has devastating consequences and deadly consequences for both humans and our constitutional rights.”

Concerns about overregulation of free speech

However, others believe the Minnesota amendment and its wording goes beyond the public safety issues raised by Maye Quade and other leaders.

John Coleman, legislative counsel for the Foundation for Individual Rights and Expression (FIRE), told The Center Square that the proposed Minnesota amendment could affect a variety of artificial intelligence applications in use by people.

“AI isn’t an independent speaker,” Coleman told the website. “It’s a tool that people use to write, research and communicate ideas. It’s an expressive tool, and the people who develop and use it retain their free speech rights.”

Coleman noted that free speech protections extend to people who use many tools used to communicate thoughts and ideas, “whether that's a printing press, a camera, the internet or AI.” Coleman worried about the extent of such regulations. "If lawmakers can carve out AI today, other modern communication tools could be next.”

Kevin Frazier, an adjunct research fellow at the Cato Institute, has voiced similar concerns about the proposed Minnesota amendment, adding that one core question was the conflict between the language of SF 4114 and the basic First Amendment free speech rights stated in the U.S. Constitution.

“The traditional understanding of state constitutions is that they can serve as an additional source of liberty for citizens by providing clarity and further guarantees of certain rights,” Frazer writes. “Minnesota legislators want to instead inhibit individual freedom via a constitutional amendment that would exclude AI from the state’s guarantee of the ‘right to freely speak, write, and publish sentiments.’”

“It’s fair to guess that members of the Founding Generation would not look fondly upon a state trying to reduce the use of a tool that allows more people to exchange more ideas and pursue additional knowledge,” he concluded

Efforts in other states and at the national level

The debate in Minnesota is just one of many across the country about the growing impact of artificial intelligence.

According to Multistate, a government affairs tracking service, more than 1,500 bills related to artificial intelligence have been introduced in state legislatures as of March 2026, compared with 1,208 in 2024 and 635 in 2023. (About half of the states tracked by Multistate allow proposed laws to be carried over from the previous year.)

In Pennsylvania, lawmakers have introduced a bill to ban the use of AI-generated voices in political advertisements. A proposed law in Florida would restrict the use of artificial intelligence in providing psychological, clinical, counseling, and therapy services. And in recent years, lawmakers in at least 47 states have passed laws regulating deepfakes, or the use of AI to create a false but realistic audio or video of people doing or saying things they did not actually do.

The Trump administration has also addressed the issue of AI and free speech in proposing a National AI Legislative Framework to Congress in March 2026. “The federal government must defend free speech and First Amendment protections, while preventing AI systems from being used to silence or censor lawful political expression or dissent,” the policy states as one goal.

Of broader importance is the administration’s goal of having Congress pass laws that preempt state laws related to many uses of AI. “A patchwork of conflicting state laws would undermine American innovation and our ability to lead in the global AI race,” it argues. “Preemption must ensure that State laws do not govern areas better suited to the Federal Government or act contrary to the United States’ national strategy to achieve global AI dominance.”

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

To many Americans, the most memorable and significant part of the Constitution is its opening, “We the People of the United States.” The principles expressed in the Constitution’s Preamble animate our political culture and announce our government’s aspirations. Yet it was neither Madison nor Jefferson nor Washington who wrote those famous words. That distinction belongs to the largely overlooked Gouverneur Morris—perhaps the most important and colorful of the forgotten Founding Fathers.

Gouverneur Morris was born in 1752 in Morrisania, New York. The son of a wealthy family, he showed early promise as a scholar, attending King’s College (now Columbia University) at just 12 years old. Morris graduated with bachelor’s and master’s degrees by 1771. While pursuing his master’s, he apprenticed under New York Supreme Court Judge William Smith. The 19-year-old Morris who emerged in New York society as a licensed lawyer cut quite a figure. Known for his wit and charisma, he was over 6 feet tall at a time when the average American man stood at around 5 1/2 feet. Theodore Roosevelt, who wrote a biography of Morris, described him as “[i]mperious, light-hearted, good-looking, well-dressed. . . [and with] just a touch of erratic levity that served to render him still more charming.”

Morris and the Revolutionary War

Everything was looking up for the young Morris, but his life was forever changed by the growing hostilities between the American colonies and Britain. Much of his social circle remained loyal to the Crown. Many scholars paint Morris as a “conservative” who was “slow to support the revolutionary cause,” but historian Dennis Rasmussen notes that he “embraced the idea of independence right around the same time as did the bulk of his fellow patriots.” By 1776, Morris was firmly on the side of Revolution, a stance that put him at odds with many of his friends and family.

During the Revolutionary War, Morris served as a delegate to the Second Continental Congress, which functioned as the de facto national government during the Revolutionary War. Notably, Morris was selected to be on a five-member committee sent to Valley Forge to meet with General George Washington. He witnessed firsthand the battered and underfunded Continental Army, describing in a letter the “naked starving Condition” of the Army rendered “out of Health [and] out of Spirits.” The visit to Valley Forge instilled in Morris a deep admiration for Washington. Morris returned to Congress as Washington’s advocate and ally.

As a member of the Continental Congress, Morris was young, opinionated, and intent on furthering the interests of the union as a whole, rather than just those of New York. This nationalist commitment displeased the New York Legislature, which failed to reappoint Morris in 1779. It was also around this time that Morris suffered an accident that led to the loss of his left leg. The story accepted by most historians is that his leg was amputated following a carriage accident. This explanation has not stopped the dissemination of the likely apocryphal tale that Morris broke his leg jumping out of a window to escape the enraged husband of a woman he was seeing. The tall, handsome, well-to-do Morris was well known for his rollicking social life. In any case, Morris would walk with the help of a wooden peg leg the rest of his life.

After losing his seat in Congress, Gouverneur Morris moved to Pennsylvania in 1779, drawn to the nation’s political and financial center. There, he resumed his law practice while continuing to write and correspond on the young nation’s political and financial future. Within two years, he returned to public service as assistant superintendent of finance to Robert Morris (no relation), helping to stabilize the nation’s precarious wartime finances. His growing influence in Pennsylvania led to his appointment as one of the state’s delegates to the Constitutional Convention.

Morris at the Convention

“He came here as a Representative of America,” Morris boldly proclaimed in July 1787, “he flattered himself he came here in some degree as a Representative of the whole human race.” Rather than representing the provincial interests of any one state or region of America, Morris sought to further the interests of the nation. He implored his fellow delegates “to extend their views beyond the present moment of time; beyond the narrow limits of place from which they derive their political origin.” For too long under the Articles of Confederation had “the great objects of the nation” been “sacrificed constantly to local views.” The creation of the Constitution was an opportunity to finally embrace a truly national identity—to “form a compact for the good of America.” This nationalistic conception, historian Jonathan Gienapp argues, was the “core of his thinking.” Morris wanted “more Americans [to] feel like Americans: defang the states; bolster the nation.”

Morris’ attempts to convince his fellow delegates to look to “the good of America,” rather than the interests of their own states, ran up against a persistent problem: slavery. In one of his most passionate and significant speeches, Morris declared that he “never would concur in upholding domestic slavery. It was a nefarious institution — It was the curse of heaven on the States where it prevailed.” Southern delegates were obstinate, insisting not only on protecting slavery but on skewing representation to favor their own interests via the Three-Fifths Compromise, which counted enslaved people as three-fifths of a person for purposes of representation and taxation. Throughout the Convention, Morris remained perhaps the most vocal opponent of slavery. In Morris’ words, whenever he was presented with the “dilemma of doing injustice to the Southern States or to human nature,” he chose “the former.”

While Morris had great influence through debate and discussion, speaking 173 times (the most of any delegate), his greatest contributions came in his role as the Constitution’s penman. In September 1787, the Convention formed a five-member Committee of Style tasked with organizing and revising the Constitution. The chair of the Committee, William Johnson, chose Morris to put together the draft. Various accounts consider Morris’ alterations merely stylistic, but recent scholarship by William Treanor has uncovered multiple substantive changes. In Treanor’s estimation, by making slight edits Morris strengthened the national government, creating “the basis for the Federalist Constitution.”

Many of Morris’ edits are necessarily subtle; his rewrite of the Preamble is not. James Wilson, another influential forgotten founder, had written an earlier draft of the Preamble as a member of the Committee of Detail. Wilson was the originator of the famous first words of the Constitution, “We the People” — although with a different meaning. This preliminary draft conceived of the Constitution as an agreement between the peoples of each state:

We the People of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity.

In contrast, Morris’ version, the Preamble we know today, conceived of one American people:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

While the first lists each state and refers to the people principally as members of their respective states, the second refers to the “People of the United States” and sets out goals common to all Americans. This change encapsulates Morris’ political project: the Constitution was meant to create one nation, the “United States of America.”

Following the Convention, Morris opted to travel to Europe rather than stay in America. During his time abroad, he was called upon to serve as Minister to France during the French Revolution. Returning to America in 1798, Morris, who was reluctant to rejoin public life, was convinced to serve as one of New York’s Senators from 1800 to 1803. During his later years, Morris faced disillusionment as he witnessed the ascendancy of the Democratic Republicans and the downfall of the Federalist party. Morris published numerous works and chaired the Erie Canal Commission before passing away in November 1816.

In an 1814 letter, Morris wrote to a friend that the Constitution “was written by the fingers, which write this letter.” And in the words of James Madison, the “finish given to the style and arrangement of the Constitution fairly belongs to the pen of Mr Morris. . . . A better choice could not have been made.” It was Morris who wrote the Preamble and organized the Constitution into the set of seven articles that became the law of the land. Despite his myriad achievements, the peg-legged penman of the Constitution has faded into obscurity. So many historians who write on Morris come to express the same sentiment: Gouverneur Morris is unforgettable yet forgotten.

Tristan Worsham is a National Constitution Center content fellow and a graduate of the University of California, Berkeley.

Resources:

Jonathan Gienapp, “Representing the Nation: Gouverneur Morris’s Nationalist Constitutionalism,” Georgetown Journal of Law & Public Policy (2023)

Gouverneur Morris, ed. J. Jackson Barlow, To Secure the Blessings of Liberty: Selected Writings of Gouverneur Morris (2012)

Dennis C. Rasmussen, The Constitution’s Penman: Gouverneur Morris and the Creation of America’s Basic Charter (2023)

Theodore Roosevelt, Gouverneur Morris (1888)

William M. Treanor, “The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution,” Michigan Law Review (2021)

As ratified as part of the Bill of Rights, the Constitution’s Fourth Amendment reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In United States v. Chatrie, a Virginia man claims a detective did not reasonably obtain the search warrants required by the Fourth Amendment to track down his cellphone location data, which was used eventually to convict him of a crime. Law enforcement had asked for a geofence warrant from a magistrate, which sets a distance from a certain physical point from which service providers must provide data to law enforcement about mobile phones users’ activities.

While the Court is only asked in Chatrie to consider the specific execution of the geofence warrant in the case, its decision could expand or limit the Fourth Amendment protections established for cellphone users in Carpenter v. United States (2018). In his 5-4 majority decision in Carpenter, Chief Justice John Roberts held that “the Government’s acquisition of . . . cell-site records was a search within the meaning of the Fourth Amendment. … [T]he Government must generally obtain a warrant supported by probable cause before acquiring such records.”

The basic facts in the case

Okello Chatrie was convicted of bank robbery based on evidence gathered by law enforcement in three different cellphone data requests to Google, based on a protocol developed by Google and approved by a magistrate. Digital services like Google, Apple, and others use location data for mapping applications and other products to provide a customized experience. A detective in Midlothian, Virginia, sought a geofence warrant about a month after the bank robbery.

After receiving the geofence warrant from a magistrate, law enforcement at first received data from within a 300-meter diameter of the crime scene; the detective made requests directly to Google for data related to specific phones and then for a specific user by name.

Chatrie’s attorneys claimed in court that law enforcement needed separate warrants for all three data requests. In his initial hearing, a district court judge agreed with Chatrie’s claims that his Fourth Amendment rights had been violated. But it allowed the evidence to be considered in the case because officers had received the warrant in “good faith.” The lower court cited the Supreme Court precedent in United States v. Leon (1984) that evidence gathered from a mistakenly issued search warrant cannot be excluded at trial.

His attorneys then appealed and the full U.S. Court of Appeals for the Fourth Circuit split equally 7-7 on the Fourth Amendment question when the chief judge declined to consider it and instead based his decision on the Leon precedent. In their appeal to the Supreme Court, Chatrie’s attorneys cited a circuit split in Fifth Circuit on the same question. The Supreme Court accepted the case on Jan. 16, 2026, limited to the Fourth Amendment question presented by Chatrie.

The Fourth Amendment in a digital context

Chatrie as the petitioner makes several arguments in his appeal. His attorneys believe that Chatrie’s situation goes beyond the issues considered by Chief Justice Roberts and the Carpenter majority. “In Carpenter, law enforcement officials sought information about the movements of a single individual suspected of a crime based on the movements of his cell phone. By contrast, using a geofence warrant, law enforcement may request information regarding all people who were at a sensitive location—an abortion clinic, a protest, a political party’s convention—at a particular time.”

The use of the geofence warrant violates basic constitutional principles, they believe. “The search of petitioner violated the Fourth Amendment. The technology may be novel, but the constitutional problem it presents is not,” Chatrie’s attorneys claim in a brief filed in February 2026. “The Fourth Amendment was born of the Founders’ revulsion for general warrants and writs of assistance—instruments that allowed the government to search first and develop suspicions later.”

After reaching a decision that a search of the petitioner occurred that violated Chatrie’s property rights and his reasonable expectation of privacy, Chatrie’s attorneys are asking the Court to rule that the warrant was defective since it did not require separate warrants for each step in the search process.

“At Steps Two and Three, the government retrieved additional private information and hence conducted additional searches. Those searches were unconstitutional,” they conclude. “Although Google reviewed the government’s Step Two and Step Three requests, Google is not a judge and has no authority to approve warrants.”

The government’s response

In its most recent response to the Court, the federal government makes several counterarguments. It also states that the proper question in front of the Court should be “[w]hether the government violated petitioner’s Fourth Amendment rights by obtaining—pursuant to a judicial warrant—cellphone location information that petitioner sent to Google LLC."

Solicitor General D. John Sauer believes Chatrie forfeited his Fourth Amendment rights when he opted in to Google’s data and location history policy. “He took no steps to protect his location from disclosure, such as pausing the Location History feature, he had enabled or adjusting, deactivating, or forgoing his cellphone during his crime.”

Another argument from Sauer supports the legitimacy of the search warrant from the magistrate. “A magistrate approved a three-step procedure for law enforcement to receive up to two hours of location information—most of it anonymized—from Google about mobile devices that were archiving locations near the bank at that time. That procedure was fully consistent with the Constitution.”

Sauer also cites the precedents in Carpenter as reasonably considering basic privacy rights in the context of a law enforcement investigation. “Even for long-term involuntarily collected location data in which an individual does have a reasonable expectation of privacy, law enforcement can obtain such information through a warrant expectation of privacy claims,” Sauer notes.

The federal government also believes that law enforcement had probable cause for the search since it was “particularized to the information on Google’s servers” that would “identify suspects and witnesses” while minimizing the scope of the information investigators received.

With the case set for arguments on April 27, numerous friends of the court briefs have been filed, including a brief from Google that supports neither party in the case. Also, of great interest will be if the current Court expands the Carpenter precedent or refines it, since only three of the majority votes from Carpenter remain on the Court: John Roberts, Elena Kagan and Sonia Sotomayor.

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

A scholar and an activist, a poet and an essayist, a classically trained aesthete who died a Marxist––the life of William Edward Burghardt Du Bois defies easy categorization. Yet throughout his kaleidoscopic career, one constant remains: Du Bois’s meditations on race, justice, and democracy have endured as crucial touchstones for generations of Americans long after his death.

Du Bois was born in Great Barrington, Massachusetts in 1868, to Mary Silvina Burghardt, a domestic worker, and Alfred Du Bois, who deserted the family when Du Bois was young. Within the supportive white community of Great Barrington, Du Bois was generally well-supported; he thrived in the town’s integrated school system, quickly rising to the top of his class. Yet, Du Bois’s later writings also reflect the moments in which he was made acutely aware of his racial difference. He describes an elementary school gift exchange abruptly ended when “one girl, a tall newcomer, refused my card”; in this moment, he realized “with a certain suddenness that I was different from the others.” These early experiences shaped Du Bois’s lifelong commitment to combatting racial prejudice.

After graduating from high school, Du Bois matriculated at Fisk University, a historically Black college in Nashville, Tennessee. After graduating from Fisk in 1888, Du Bois enrolled at Harvard, where he earned a second bachelor’s degree in 1890 and was selected to give the university’s commencement address. In 1895, Du Bois received his doctorate in history from Harvard, becoming the first African American to do so.

While enrolled at Harvard, Du Bois married Nina Gomer, a student at Wilberforce University. The couple remained together until Nina’s death in 1950 and had two children. Following Nina’s death, Du Bois remarried in 1951 to Shirley Graham, an old friend.

In 1896, Du Bois was commissioned by the University of Pennsylvania to conduct a sociological study of the Black population in Philadelphia’s Seventh Ward. For more than a year, Du Bois lived just a few blocks from the National Constitution Center. There, after over 800 hours of interviews in roughly 2,500 households, Du Bois authored his first major publication, The Philadelphia Negro. This exacting study was meant to analyze the “race problem” and identify effective solutions.

Building on these themes, in 1903 Du Bois published what has become the Ur-text in African American social thought, The Souls of Black Folk. The book opens with a simple, but powerful assessment of contemporary life: “the problem of the Twentieth Century is the problem of the color line.” Within the book, Du Bois advanced his now-famous formulation of “double consciousness” ––the idea that African Americans constantly wrestle with an inherent tension between “American” and “African” identity.

During this time, Du Bois also emerged as the most prominent counterweight to Booker T. Washington, another well-known Black leader. While Washington advocated a policy of political conservatism, economic self-help, accommodation to Jim Crow policies, Du Bois believed that African Americans should be fully integrated in the political, social, and intellectual life of the broader American community.

Still, Du Bois was not yet the political radical he would later become. At the turn of the century, he was not averse to placing limits on access to the ballot for Black and white voters alike, so long as exclusions were based on educational qualifications rather than race. Indeed, Du Bois generally adhered to a classist mindset, arguing in his controversial Talented Tenth essay that “the best of the race” —that is, the most talented ten percent of African Americans —would uplift the broader community.

Following his success in publishing, Du Bois turned to more grassroots activism. In 1904, Du Bois joined William Monroe Trotter and others to form the Niagara Movement, a civil rights organization advocating full political equality for African Americans. Despite initial excitement, the Niagara Movement ultimately floundered; yet this experience laid the groundwork for Du Bois’s co-founding of the National Association for the Advancement of Colored People (NAACP) in 1910. At the NAACP, Du Bois served as an officer, board member, and editor of its newspaper, The Crisis.

While Du Bois was physically rooted in the United States, his interests in the issues of race and justice were global. In 1900, he attended the first Pan-African Conference, which was held in London. This would be the first of seven gatherings hosted between 1900 and the end of the Second World War. This growing interest in global systems of power and exploitation compelled Du Bois to study Marxist thought. In 1935, Du Bois published his most important historical work, Black Reconstruction in America, which provided a Marxian analysis of Black labor during and after the Civil War. Du Bois’s analysis was so incisive that nearly a century later, Black Reconstruction remains a foundational text among historians.

In the years following World War II, Du Bois became increasingly involved in progressive politics. Du Bois’s political shift coincided with the rise of Communist paranoia during the McCarthy era. Indeed, for most of the 1950s, Du Bois was denied a passport for foreign travel. When the restrictions were lifted, Du Bois relocated to the newly independent Ghana on the invitation of President Kwame Nkrumah. Before leaving the United States for Ghana in 1961, Du Bois enrolled in the American Communist Party, believing it to be the only path towards an equitable future for Black Americans. Explaining his decision, Du Bois wrote, in part, “Capitalism cannot reform itself.” Communism, he concluded, was “the only way of human life.”

Du Bois never returned to the United States. He died on August 27, 1963, one day before Martin Luther King Jr. delivered his famous “I Have a Dream” speech during the March on Washington.

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.

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.