Birthright Citizenship

Disclaimer: this is not my usual type of post, but as a historian, it is something I feel very passionate about. I hate when people try to rewrite history to suit their own political agenda. Republicans do it constantly, and it is a typical fascist ploy to gain support from the ignorant. (As I have always said, ignorance isn't stupidity, though they can go hand in hand, ignorance is the disdain for learning.

In recent years, attempts have been made—most prominently by Trump and his allies—to narrow the scope of the 14th Amendment’s Citizenship Clause by asserting that it was intended only to apply to formerly enslaved people after the Civil War. This interpretation, if adopted, would dramatically alter the constitutional guarantee of birthright citizenship by excluding the U.S.-born children of undocumented immigrants or non-citizen parents. On January 20, 2025, Trump signed Executive Order 14160, titled "Protecting the Meaning and Value of American Citizenship," aiming to end birthright citizenship for children born in the United States to non-citizen parents, including undocumented immigrants and those on temporary visas. The executive order asserts that the 14th Amendment's Citizenship Clause does not apply to these children, challenging longstanding interpretations of the Constitution.

Trump’s reinterpretation of the 14^th Amendment is not only legally unsound, but it also contradicts the very principles of originalism—a judicial philosophy espoused by several current members of the United States Supreme Court, including Justices Clarence Thomas, Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh. Originalism holds that the Constitution should be interpreted according to its original public meaning at the time of its ratification. An honest application of this methodology to the 14th Amendment—adopted in 1868—reveals that the framers and ratifiers understood birthright citizenship to extend far beyond the formerly enslaved. The original debates, statutory context, and legislative intent make clear that the amendment was designed to establish a broad and enduring principle of jus soli (citizenship by place of birth), not a narrow race- or status-specific remedy.

The first sentence of the 14th Amendment 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.”

This language, while triggered by the injustices of slavery and the Supreme Court’s Dred Scott decision (1857), was not restricted to formerly enslaved persons. Rather, it established a general rule of national citizenship. As Senator Jacob Howard (1805-1871), who introduced the Citizenship Clause in the Senate, explained during the 1866 debates, it would “include every class of persons” born in the United States, with only narrow exceptions—notably, the children of foreign diplomats and tribal members under, sovereign jurisdiction.

Representative John Bingham (1815-1900), the principal framer of Section 1, likewise affirmed that the amendment was meant to secure the rights of “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty.” This phrasing did not exclude immigrants; rather, it excluded only those legally insulated from U.S. law, such as ambassadors and ministers. Immigrants, whether legally or illegally present, are subject to U.S. jurisdiction in every meaningful legal sense.

Thus, under originalist principles, the public understanding of the 14th Amendment in 1868 included birthright citizenship for all those born on American soil and subject to its laws, regardless of their parents’ status.

The broader context of the Civil Rights Act of 1866, passed shortly before the 14th Amendment, further undermines any restrictive reading. That law declared:

“All persons born in the United States and not subject to any foreign power... are hereby declared to be citizens.”

This clause formed the legislative basis for the 14th Amendment and demonstrates that Congress deliberately created a universal standard, not one limited to the formerly enslaved. While the Amendment’s ratification followed the Civil War and was motivated in part by the need to secure citizenship for freedmen, its framers understood that equal citizenship was a universal principle, not a racially contingent one.

This understanding has been upheld repeatedly by the Supreme Court, most notably in United States v. Wong Kim Ark (1898), which affirmed that a child born in the United States to Chinese parents—who were not U.S. citizens and were barred from naturalization—was nonetheless a U.S. citizen under the 14th Amendment. That decision relied heavily on both the text and historical intent of the Amendment, and it is directly contrary to the Trump-era argument that children of non-citizens are not constitutionally entitled to citizenship.

For originalists, the legitimacy of constitutional interpretation rests on fidelity to the Founders’ and ratifiers’ understanding. The attempt to redefine the 14th Amendment’s reach based on a selective, ahistorical reading that imagines it applied only to freed slaves is inconsistent with the actual record. It distorts the original public meaning by conflating historical motivation with constitutional scope. The motivation for an amendment may be rooted in a particular crisis—like the abolition of slavery—but its language and application must be understood in light of the general principles it enshrines.

Moreover, originalism demands that courts avoid imposing modern policy preferences or political pressures onto the Constitution. The Trump administration’s push to reinterpret the Citizenship Clause is a modern political maneuver, not a historically grounded legal argument. To accept such a revisionist reading would be to violate the very core of originalist jurisprudence. The legality of Executive Order 14160 is currently under review by the U.S. Supreme Court in the consolidated case Trump v. CASA. The framers of the amendment wrote in broad, inclusive terms—and debated and defended those terms publicly. They did not write a clause about race or lineage; they wrote one about the universal promise of citizenship to anyone born on American soil and subject to its laws.

Originalists on the Supreme Court, therefore, have a duty to honor that promise—not just as a matter of precedent or policy, but as a matter of fidelity to the constitutional text and its original meaning. Therefore, from an originalist perspective, the executive order contradicts the original understanding and judicial interpretation of the 14th Amendment. Originalist justices should uphold the Constitution's text and historical intent by rejecting the executive order's attempt to redefine birthright citizenship. And, while Chief Justice John Roberts and Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson do not identify as originalists, they would likely rule against Trump for the reinterpretation of a long standing understanding of the 14th Amendment. That leaves only Justice Alito, who occasionally employing originalist arguments, so whatever side of the fence he falls on this issue. Trump v. CASA will ultimately come down to the judicial consistency and moral integrity of their originalist ideology, though we know the most conservative Supreme Court justices, particularly Thomas and Alito, have no moral integrity or judicial consistency and are inherently political in their rulings.

All of that being said, after yesterday’s hearings, it should be a unanimous summary judgement in favor of CASA. Sadly, I have little faith that this will be the case, especially with the current politicized nature of the U.S. Supreme Court.