Supreme Court upholds birthright citizenship, rejects Trump order

In the Gettysburg Address, President Abraham Lincoln affirmed what America’s founders believed—that the “new nation” began with the Declaration of Independence, not with the military defeat of Great Britain or even the ratification of the Constitution. The 250th anniversary of the Declaration is both an opportunity and a duty to reflect on its principles and its continuing significance for the present and future of the country.

In the first sentence of the document’s second paragraph, we are told that it is the right of the people to reform or replace institutions that have failed to promote their “safety and happiness.” The first words of the Constitution, “We the people,” rely on and affirm this proposition.

But what is, and who are, the “people”? Whatever may have been the case in 1776, the ratification of the Constitution offered a clear answer: The people are the citizens of the United States. But this raises a further question: Who is a citizen? The Supreme Court’s infamous Dred Scott decision held that African Americans were not and could not become citizens. Americans fought a bloody civil war in part to overturn this decision.

Three years after the guns fell silent, they ratified the 14th Amendment, which declared 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.” Because foreign diplomats were outside the country’s jurisdiction, children born to them in the United States did not become citizens. Nor did Native Americans, who at that time were considered to be subject to the jurisdiction of tribal governments. (The Indian Citizenship Act of 1924 gave Native Americans dual citizenship in both the U.S. and their tribes of origin.) With these and a few other exceptions, the general rule was clear: If you were born in the United States, you were a citizen of the United States.

Although this rule was challenged from time to time after the adoption of the 14th Amendment in 1868, it was reaffirmed in the Immigration and Nationality Acts of 1940 and 1952 and acknowledged as the law of the land for 157 years. But in 2025, President Trump issued an executive order stating that children born in the United States to parents who are temporarily or unlawfully present in the country are not “subject to the jurisdiction” of the United States and therefore do not qualify for citizenship under the 14th Amendment or the Immigration and Nationality Act, which uses the same language. The president’s executive order was quickly challenged and soon reached the Supreme Court.

The court decided the case of Trump v. Barbara on June 30. Writing for a five-member majority, Chief Justice John Roberts argued that both English common law, which Americans had adopted, and the public meaning of the 14th Amendment’s text affirmed the long-held proposition that being born on American soil is a sufficient condition for citizenship. The majority therefore struck down President Trump’s executive order as violating the Constitution, so understood.

In a concurring opinion, Justice Kavanaugh argued that while the constitutional issue “is not straightforward, much as we might want it to be,” the president’s executive order went beyond the bounds of existing statutes by adding two new limits to the one that Congress has codified. To achieve his goal lawfully, the president would have to persuade Congress to amend these statutes.

The remaining three justices mounted a frontal attack on the majority decision. In a 91-page dissent, Justice Clarence Thomas mobilized historical evidence which, he argued, supported the conclusion that being born in the United States was not sufficient to confer citizenship. In addition, he argued, individuals had to establish “domicile” in the United States to demonstrate their “allegiance” to the country and become subject to its jurisdiction. In his opinion, Chief Justice Roberts pushed back against this assertion, arguing that citizenship and domicile were unrelated legal categories.

In his dissent, Justice Thomas pointed out—accurately—that in recent years, several legal scholars had assembled historical evidence supporting his account of the 14th Amendment’s original meaning. He did not mention, however, that some originalist scholars using the same methods had reached the opposite conclusion. In 2025, for example, John Yoo and Robert Delahunty, two originalists and supporters of a strong executive, published an article, “The Originalist Case for Birthright Citizenship.” Reviewing the evidence, they concluded that the best reading of the 14th Amendment’s “text, structure, and history” supported the traditional understanding of citizenship—the very view that the chief justice’s majority decision reaffirms.

President Trump seems to have taken Justice Kavanaugh’s concurrence as an invitation. In a statement on Truth Social, he called on Congress to pass new legislation affirming his view of birthright citizenship. But members of Congress with experience in constitutional law, including House Speaker Mike Johnson (R-La.) and Senator Mike Lee (R-Utah), understand that the legislative route will be futile as long as a majority of the Supreme Court rejects the president’s executive order on constitutional grounds. “You got to amend the Constitution to fix this,” Rep. Johnson said. “The long fight for a constitutional amendment begins now,” Sen. Lee affirmed.

Given today’s deep political polarization, however, it is almost impossible to muster the supermajority needed to amend the Constitution. It is not clear that even a bare majority of Americans are prepared to support a fundamental change in the longstanding practice of birthright citizenship. Both parties would like to change the Constitution to overturn Supreme Court decisions they don’t like. Both are likely to be disappointed for some time to come.