The Supreme Court on Tuesday affirmed the public’s understanding for more than 100 years that the Constitution guarantees citizenship, with narrow exceptions, to people born in this country. But particularly striking was that four justices disagreed with the majority’s interpretation of that constitutional guarantee.
The question before the justices was whether the Constitution guarantees citizenship to children born in the United States of parents who are unlawfully or temporarily present in the country. Under the Citizenship Clause of the 14th Amendment, “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
President Trump’s executive order last year said children born in this country to parents here unlawfully or temporarily are not “subject to the jurisdiction thereof” and don’t qualify for citizenship. A majority of justices disagreed.
Although the decision in Trump v. Barbara striking down the executive order is considered a 6-3 ruling with dissents by Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, it was actually 5-4. Justice Brett Kavanaugh would have struck down President Trump’s birthright citizenship order because it violated a federal statute, but not the Citizenship Clause of the 14th Amendment.
That 5-4 split is significant both legally and politically. The dissenters would encourage Congress to use legislation to change the federal statute (8 U.S.C. § 1401(a)) that codifies the Citizenship Clause to add new exceptions to citizenship as in Trump’s order. Such a change likely would face steep odds in the current court because of its ruling Tuesday. But if the narrow five-justice majority were to change in time, the constitutional ruling could be in jeopardy. It would only require one vote.
How could the nine justices divide on an issue that had been settled and reaffirmed for more than a century, and on Trump administration arguments rejected by some of the nation’s most respected historians and legal scholars as “off the wall?” To some observers, the divide is another example of how far to the right this court has moved, particularly with the Trump appointees Gorsuch, Kavanaugh and Barrett.
So why did they split?
Chief Justice John Roberts Jr. wrote the majority opinion, joined by Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
Roberts wrote that the story of citizenship in the United States begins with English common law, of citizenship, known as jus soli, or the right of the soil. That common law rule was carried to America and prevailed in all of the states after American Independence.
The common law understanding continued until Dred Scott v. Sandford, which departed from the common law and adopted the view that blood, not soil, determined citizenship, and descendants of slaves were not eligible. The country returned to the common law in the Civil Rights Act of 1866, which made citizens of “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”
The 14th Amendment completed what the 1866 act started, according to Roberts. The amendment, he wrote, “was intended to repudiate Dred Scott. This time, however, the goal was even grander—to put the ‘great question of citizenship’ ‘beyond the legislative power’ altogether, to settle the issue once and for all.”
The 14th Amendment, he wrote, “achieved its aim. The Citizenship Clause mirrored the common law’s criteria for citizenship. The Clause starts, like the common law, with territory—a child must be ‘born . . . in the United States,’ not elsewhere (even to American parents). And the clause ends, again like the common law, with sovereign power—a child must be ‘subject to the jurisdiction’ of the United States, unlike (say) the families of foreign ministers. A child born on American soil and subject to American law was made an American citizen. Even the language of the clause is that of the common law.”
Roberts rejected the arguments by the primary dissenter—Thomas—that a person must be “domiciled” in the United States to be subject to its jurisdiction and eligible for citizenship.
“If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design. Words appearing frequently in the Executive Order—mother,’ ‘father,’ ‘lawful,’ ‘temporary—are absent from the clause. For a simple reason: they did not matter.”
Justice Thomas, joined by Alito and Gorsuch, said the executive order was consistent with the original meaning of the Citizenship Clause insofar as it applied to children born to parents here lawfully or unlawfully but not domiciled in the United States.
“The Citizenship Clause was enacted for people who were born in this country and called it home,” he wrote. “It was enacted for freed slaves such as Dred Scott, who had ‘a domicile’ here and therefore were entitled to sue as citizens. It was enacted for men such as Frederick Douglass, who demanded citizenship ‘not as aliens nor as exiles,’ but as ‘Americans.’”
That the Constitution requires “domicile,” he argued,” is supported by the constitutional text, contemporaneous evidence, early executive practice, early legislative practice, judicial precedent, and all of the other indicators of original public meaning. The Court’s alternative account does not have a similar degree of support.”
Thomas accused the Court of “repurposing” the 14th Amendment to protect its own preferred rights that were never envisioned by the Reconstruction Congress. “Today, the Court does so again by recognizing a constitutional right to citizenship for the children of all foreign birth tourists and illegal aliens,” he concluded.
Gorsuch echoed Thomas’ primary argument, writing: “What matters isn’t whether a child’s parents are citizens. What matters is whether they (and, by law, their child at birth) have made this place their home and are thus ‘domiciled within the United States.’”
And Alito said the majority’s interpretation of the amendment confers citizenship on “virtually everyone who happens to be born in this country, including the children of ‘birth tourists,’ women who come here solely for the purpose of giving birth to a child and then promptly return home.”
He contended that analysis of the amendment’s text and the history of its adoption “shows that it does not degrade the concept of United States citizenship in this way. Instead, the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.”
Kavanaugh wrote that the court could have struck down the executive order on grounds that it violated the federal statute codifying the Citizenship Clause, but not the 14th Amendment.
The Constitution, he wrote, is “an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.”
He added that “under basic tenets of constitutional interpretation,” other exceptions to birthright citizenship, such as those recognized in the executive order and in the 1898 decision, United States v. Wong Kim Ark, are constitutional.
Tuesday’s opinions are long– more than 200 pages in total– a challenge for readers. But as Justice David Souter once told an audience, the public must read the decisions to decide who is right, whether one explanation of principles and history is more persuasive than a different explanation.
There may be attempts, as suggested by some of the dissenters, to legislate the Trump administration’s views, but for now, the Roberts Court majority has ruled on the meaning of the Constitution’s Citizenship Clause.
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.
