The Birthright Citizenship Ruling, Explained
Birthright citizenship survived a Supreme Court test, but opponents aren’t giving up.
Linda Chavez is the vice-chair of the Renew Democracy Initiative and chairs the Center for Equal Opportunity. A veteran of multiple presidential administrations, she is also the author of four books and was a nationally syndicated columnist for thirty years. She continues to write frequently on immigration, civil rights, and politics. Linda is also the host of the Older/Wiser podcast from RDI and The Next Move.
The Supreme Court’s Tuesday decision on birthright citizenship should come as no surprise to anyone who has read the Fourteenth Amendment’s guarantee 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.”
The only surprise is that the Court’s ruling in Trump v. Barbara was not unanimous.
Five of the justices—Chief Justice John Roberts (writing for the majority) and Justices Amy Coney Barrett, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson—read the plain language of the amendment as written. Justice Brett Kavanaugh concurred with the majority in striking down President Trump’s executive order denying birthright citizenship to the children of temporary legal residents and illegal immigrants, but on statutory rather than constitutional grounds.
But Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch twisted themselves into pretzels trying to explain away their position.
This week’s ruling should be the end of the debate on birthright citizenship—but I predict it won’t be. Opponents of birthright citizenship have a vested interest in trying to redefine what it means to be an American.
Chief Justice Roberts was robust in rebuking the arguments made by the Trump administration and his dissenting colleagues. Opponents of birthright citizenship have for years staked their interpretation of the Fourteenth Amendment on the phrase “subject to the jurisdiction thereof,” which they claimed excluded children born to non-citizen parents who, they said, owed allegiance to a foreign nation. Yet Roberts made mincemeat of this argument, citing the long history of an entitlement to birthright citizenship in English common law, which crossed the Atlantic with the original colonists and “was adopted with little fanfare after the Revolution.” Roberts noted that “This common law of citizenship—known as jus soli, or right of the soil—prevailed in ‘each and all of the states’ after American independence, and continued to emphasize reciprocal ‘allegiance’ and ‘protection.’”
Perhaps anticipating that their arguments on “subject to the jurisdiction” might fail, opponents of birthright citizenship lately have adopted an ancillary argument that allegiance is tied to where one is “domiciled,” which, they claim, cannot apply to temporary residents, much less illegal immigrants. As US Solicitor General John Sauer argued before the Court: “At some point before the ratification of the Fourteenth Amendment, the argument goes, it became ‘deeply rooted’ in this country that ‘[d]omicile is the key concept that creates allegiance.’”
Roberts dismissed this line of reasoning just as forcefully as he shut down the jurisdiction argument.
“The trouble is that there is scant evidence for this dramatically revisionist view,” the chief justice wrote. “Certainly no one said that such a change had occurred.”
It’s ironic that opponents developed this argument to square their views with the Court’s precedent in Wong Kim Ark (1898) That ruling revolved around a man, Wong Kim Ark, who was born in San Francisco to Chinese merchant parents. Despite his Californian origins, Wong returned to China at a young age. On a return trip nearly two decades later, US officials denied him entry on the basis that—in their reading—he was not a citizen.
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The facts of Wong belie their interpretation. The Court did indeed use the term “domiciled” to describe Wong’s parents’ status when he was born.
However, Chinese people were viewed as subjects of the emperor of China regardless of where they lived, and they were not eligible to become US citizens at the time. Indeed, in the years between the Wong family’s move back to China and Wong Kim Ark’s return to the United States, Congress passed the blatantly racist Chinese Exclusion Act.
The whole emphasis on allegiance among opponents of birthright citizenship smacks of the fear that some people can’t become fully American, even if they’re born here. This pernicious belief has found new life in the concept of “heritage Americans,” which is becoming popular on the right. A category with no legal basis, “heritage Americans” are those who can trace their ancestry to the Founding. All others, according to the concept’s proponents, aren’t fully American.
Abraham Lincoln certainly would have disagreed with this notion. In a famous speech he gave in 1858 celebrating American Independence and our Founders, he noted:
We have—besides these, men descended by blood from our ancestors—among us perhaps half our people who are not descendants at all of these men; they are men who have come from Europe—German, Irish, French, and Scandinavian—men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that ‘We hold these truths to be self-evident, that all men are created equal,’ and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration and so they are.
On the eve of the 250th anniversary of that Declaration, we must recall that birthright citizenship is not a vulnerability but one of the greatest strategic advantages of the American system. By welcoming children born on our soil fully into the American family from their very first breath, we incentivize rapid integration, social harmony, and shared economic prosperity. It is this unique mechanism that allows us to seamlessly weave diverse threads into a single national fabric.
It’s reassuring that the majority of the Supreme Court has upheld birthright citizenship—but the dissent of three justices and the Trump administration’s ongoing campaign against immigration remind us that we cannot take that right for granted.
The Renew Democracy Initiative, publisher of The Next Move, is pleased to join the Institute for the Study of Modern Authoritarianism, publisher of The UnPopulist, as a media partner for the third annual Liberalism for the 21st Century Conference—LibCon 2026—in Washington, DC on July 16 and 17. Click here for more information and to register. Coinciding with America’s 250th anniversary, the theme of the conference is the Reconstruction Agenda. The conference will assess the damage that authoritarian and demagogic politics have caused to the country’s liberal institutions and propose a path forward to rebuild accountability and confidence in the rule of law. The conference features a stellar lineup, including RDI Vice Chair Linda Chavez, along with Francis Fukuyama, Anne Applebaum, David French, Hong Kong dissident Nathan Law and many more. We’ll be there and so should you.
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