The Constitution, Birthright Citizenship, and a Self-Governing Republic

On June 30, 2026, the Supreme Court issued its decision in Trump v. Barbara, addressing the constitutionality of Executive Order No. 14160, issued by President Trump on January 20, 2025. The Order, “Protecting the Meaning and Value of American Citizenship,” had sought to limit recognition by federal executive agencies of birthright citizenship under the Fourteenth Amendment’s Citizenship Clause for children born in the United States to parents who were either unlawfully present or temporarily present (with the father not a U.S. citizen or lawful permanent resident). The majority opinion, authored by Chief Justice Roberts and joined by Justices Sotomayor, Kagan, Barrett, and Jackson (with Justice Kavanaugh concurring in the judgment on narrower statutory grounds), held that such children are “subject to the jurisdiction” of the United States and thus acquire citizenship at birth. The Court struck down the Executive Order as violating the Fourteenth Amendment. 

The core reasoning of the majority opinion, which explicitly guaranteed citizenship to children born to parents illegally residing in the country and to those entering the country on temporary visas for the purpose of engaging in “birth tourism,” was strangely rooted in the British common law of jus soli (right of the soil). Indeed, the Court begins its opinion by asserting  

The story of citizenship in the United States begins with the English common law. Before the Revolution, the American colonists—like all in the British Empire—were considered subjects of the sovereign. 

It is indeed true that the American colonists were considered subjects of the sovereign, King George III. Where the Court is badly and profoundly mistaken is in its ahistorical and wholly inaccurate assertion that such subjectship was the basis for citizenship once the United States declared their independence from Great Britain. The former colonists stated unequivocally that their “separate and equal station” entitled to them by “the laws of nature and nature’s God” absolved them “from all Allegiance to the British Crown.”   

Even more striking is Chief Justice Roberts’ specious reliance on a British case from 1608, Calvin’s Case, a foundational English common law decision on the nature of subjecthood and allegiance to the Crown. The case involved a challenge to the conveyance of estates in England to a child born in Scotland in 1605 (two years after James VI of Scotland ascended the English throne as James I). The ruling in Calvin’s Case found that because Scotland and England were ruled by a single sovereign at the time of the child’s birth, the child could claim the rights of an English subject, including the ability to hold and sue for English land as a natural-born subject. Allegiance was ruled to be personal and perpetual, owed to the king’s natural person, not to any particular kingdom, its laws, or parliament. 

The idea that our U.S. Supreme Court could possibly find a rationale for birthright citizenship in Calvin’s Case defies credulity. The Court treats common-law allegiance to a monarch (an allegiance that was profoundly rejected at our founding) as automatically translating into constitutional citizenship. As the Court notes: 

With protection came allegiance, and with allegiance came the status of a natural-born subject. This view crossed the Atlantic with the colonists—and was adopted with little fanfare after the Revolution, as “subject[s]” of the sovereign became “citizens” of the States. 

Roberts selectively quotes some obscure state court judges’ writings in an attempt to prove his assertion 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.’” However, the facts from the early years of the Republic, especially concerning the question of citizenship for those “Loyalists” who did not consent to withdrawing their allegiance from King George III during and after the Revolution, tell a different story entirely. Indeed, the treatment of Loyalists provides a window into the early American idea of citizenship as active and consensual rather than perpetual or birth-based in a monarchical British sense.  

Most states under the Articles of Confederation required oaths of allegiance to the independent state (renouncing the King) as a prerequisite for citizenship rights, voting, holding office, or even remaining in the polity. Those who refused or had previously supported Britain were often denied these rights or treated as perpetual aliens. Some states set deadlines for taking oaths to gain or retain citizenship. Mobility between states by former Loyalists tested the Articles of Confederation’s privileges and immunities clause and influenced the push toward more uniform federal naturalization standards. 

In other words, citizenship in the newly created sovereign confederation of states was based not upon jus soli, but upon consent. Citizenship was not a function of having been born on American soil; rather, it was a function of allegiance to the appropriate and rightful sovereign. The treatment of Loyalists during this period illustrates the revolutionary transformation from British subjecthood (tied to the Crown) to American citizenship (tied to consent, oaths, and support for independence).  

What the Court fails to acknowledge is that the American Founding rejected perpetual feudal allegiance. The Declaration of Independence absolved “Allegiance to the British Crown” and dissolved political connections, grounding government in the “consent of the governed.” Citizenship derived from choice, deliberation, and social compact—not accident of birth. As James Madison affirmed, “all power in just & free Govt is derived from compact.” The historical record—Roberts’ faulty and selective historical narrative to the contrary notwithstanding—clearly demonstrates that the founding generation based citizenship on this consent-based framework, not some irrelevant application of English common law governing subjects.  

Having erroneously traced the citizenship clause to English common-law jus soli, the Court then argued that the citizenship clause was largely declaratory of preexisting law prior to the anomalous decision of Dred Scott v. Sandford (1857), and specifically designed to overturn that flawed ruling. According to the Court, except for the period between 1857, when the Supreme Court ruled that Blacks could not be citizens of the United States, the mere fact of birth within U.S. territory generally conferred citizenship, with narrow exceptions (e.g., children of diplomats or hostile occupation). The Court interpreted the citizenship clause’s qualifying phrase “subject to the jurisdiction thereof” as merely a statement of territorial sovereign power, meaning that anyone who was subject to U.S. laws while present on U.S. soil was included. Temporary or unlawful presence does not exempt a person or their child, as such individuals remain amenable to U.S. laws and courts. The Court rejected requirements of domicile, permanent allegiance, or explicit “consent” by the body politic, defining “subject to the jurisdiction thereof” as merely territorial birth under U.S. protection. 

The congressional record from the Reconstruction period strongly supports a narrower view. Senator Jacob Howard, introducing the citizenship clause, described it as “simply declaratory” of existing law. Senator Howard was referring to the Civil Rights Act of 1866, which was the immediate precursor to the Fourteenth Amendment on the subject of citizenship and which used the phrase “not subject to any foreign power.” Senator Howard stated that the term “subject to the jurisdiction thereof” in the Fourteenth Amendment would not include “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers (emphasis added).” The phrasing and context indicate separate exclusions for foreigners/aliens (beyond diplomats). Senator Lyman Trumbull emphasized “subject to the complete jurisdiction” as meaning “not owing allegiance to anybody else.” Indians (owing tribal allegiance) were treated as “quasi foreign nations.” Indians not taxed were explicitly excluded in the Civil Rights Act of 1866. 

Any honest reading of the legislative debates over the meaning of the citizenship clause of the Fourteenth Amendment refutes the majority’s claim of a bright-line territorial rule. The framers of the Fourteenth Amendment focused on “full and complete jurisdiction” tied to allegiance, not mere presence. The majority’s reading renders the jurisdiction qualifier surplusage and ignores the explicit exclusionary intent. 

The majority opinion relied heavily on the only Supreme Court case to address what birthright citizenship meant under the Fourteenth Amendment. United States v. Wong Kim Ark (169 U.S. 649, 1898) ruled a child born to domiciled parents residing in the U.S. legally was guaranteed birthright citizenship under the Fourteenth Amendment. The case, of course, did not reach the issue of whether the Fourteenth Amendment guaranteed such citizenship for children born to parents unlawfully or temporarily residing in the U.S. But the Court determined that the ruling in Wong Kim Ark was nevertheless a valid precedent, applying the broad but mistaken adoption of jus soli that formed the Court’s central reasoning in that 1898 case.The majority paid no attention to the dissenters in Wong Kim Ark, who argued persuasively that “jurisdiction” excludes those not fully subject to U.S. authority (e.g., diplomats, invading armies, or those owing primary allegiance elsewhere).  

Justice Clarence Thomas, joined by Justice Neil Gorsuch, authored the principal dissent—a lengthy 91-page opinion that provides the most thorough originalist examinations of the citizenship clause in recent Supreme Court history. Several of the arguments above echo those in Thomas's dissent, which directly challenges the majority’s historical narrative and textual interpretation. Thomas argued that the majority’s broad jus soli reading is historically inaccurate and devalues American citizenship. He emphasized that the citizenship clause and its precursor, the Civil Rights Act of 1866, were designed to secure citizenship for freed Blacks—who had “no other homeland,” fought for the Union, and owed no allegiance to foreign powers—while not extending automatic citizenship to those without such ties. Thomas also discusses the policy implications of the majority’s ruling and offers a robust framework for upholding (at least significant portions of) Executive Order 14160. 

Thomas argued that true citizenship by birth requires domicile (permanent residence and intent to remain) plus full jurisdiction/allegiance to this nation. Temporary visitors, illegal entrants, and birth tourists do not qualify for the right to become citizens. Thomas asserted that the original public meaning derived from a thorough study of the Reconstruction Congress, focused on reversing Dred Scott for those integrated into American society, not on creating a constitutional right for children of all foreign nationals present on U.S. soil. Thomas repeatedly stresses that the Amendment was a targeted remedial measure for the newly freed slaves—not a universal grant of birthright citizenship to children of transients or those without deep roots in the American polity. Extending it broadly, he argues, “repurposes” the Amendment for modern political projects the Reconstruction Congress never contemplated.  

Thomas explains that jurisdiction means more than subjection to police power; it requires the absence of foreign allegiance and integration into the body politic. He also robustly defends originalism against the majority’s expansive, precedent-heavy approach, warning of the long-term erosion of national sovereignty and the meaning of citizenship.  

Justice Alito also authored a dissent, emphasizing that the citizenship clause grants birthright citizenship only to children who, at birth, owe sole and complete political allegiance to the United States. “Subject to the jurisdiction thereof” requires more than mere physical presence or subjection to U.S. laws—it demands exclusive allegiance, excluding children of parents who retain primary ties or allegiance to foreign countries (e.g., temporary visitors or unlawful entrants whose children may automatically acquire foreign nationality). Alito focused on the historical understanding of allegiance and jurisdiction at the time of the Fourteenth Amendment, aligning with the view that the Clause was not intended to confer citizenship indiscriminately on the children of those not fully integrated into the American polity. Alito’s dissent is more concise and, in some ways, more pragmatic than Thomas’s lengthy, domicile-heavy opinion, but both conclude that the Executive Order was at least partially constitutional and that the majority erred in striking it down wholesale.  

President Donald Trump has already indicated that he will request a rehearing of Trump v. Barbara, calling it a “miscarriage of justice.” While such a rehearing is clearly a long shot, a deep analysis of the flawed reasoning and mistaken historical analysis of the majority opinion, to say nothing of the compelling arguments brought forth by Justices Thomas and Alito, gives support to Trump’s request. No nation can be sovereign if it cannot control who becomes a member. Granting automatic citizenship to children of illegal aliens or temporary visitors allows outsiders to confer citizenship without the nation’s consent, which is a fundamental violation of the social compact. The American people, as a distinct political community, must consent to the admission of new members through naturalization or other lawful means. The decision “devalues” citizenship by treating it as an automatic territorial boon rather than a solemn status tied to the nation’s self-definition and sovereignty. 

There are policy implications as well: the Court’s expansive definition of birthright citizenship incentivizes illegal immigration and “anchor baby” strategies, undermining the nation-state. It moves toward “universal personhood” in a borderless world, eroding the privileges and duties of citizenship. It encourages our enemies to develop strategies that make U.S. citizens of persons with no ties or allegiance to the United States, posing a potentially grave threat to national security. Immigration policy should serve the nation’s interests—prioritizing skilled contributors who accept American principles—rather than functioning as global charity. By constitutionalizing near-universal birthright citizenship, the Court also limits democratic deliberation on immigration and citizenship policy. 

Trump v. Barbara constitutionalizes a policy that the framers of the Fourteenth Amendment and the Founders would have soundly rejected. It incentivizes strategic migration, strains resources, and shifts power from the political branches. More importantly, the decision represents a missed opportunity for the Court to reaffirm that citizenship is precious and a fundamental aspect of national sovereignty. The Supreme Court’s denial of U.S. citizenship to blacks in Dred Scott v. Sanford proved catastrophic for the nation, however popular it was at the time with certain elements of society. Dred Scott precipitated a deadly and devastating civil war, and ultimately required a constitutional amendment to undo the damage it had done. Let us hope this time the Supreme Court will look beyond its immediate popularity and reconsider it before its negative consequences unfold. 

Linda Denno is a senior fellow at the Civitas Institute. She is also Associate Dean of the University of Arizona, College of Applied Science and Technology headquartered at the branch campus in Sierra Vista, Arizona.