Birthright Citizenship and the Supreme Court
https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf
The Court upheld the provisions of birthright citizenship (i.e. if you are born here, you are a US citizen) enshrined in the 14th Amendment of the US Constitution. There were many separate opinions. I’ll try to make sense of and explain them.
The 14th Amendment said ““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.”
Chief Justice Roberts speaking for the court’s majority said birthright citizenship was the old law of England (the common law) for many centuries. It was simply adopted by the US, enshrined in the first Civil Rights Act, in the succeeding 14th Amendment, in the Supreme Court precedents, and in the laws, policy and practice of the US for the last several centuries.
This is also called “ius solis” the law of the soil, if you were born on US soil, you were born an American citizen. https://www.lexidy.com/blog/jus-soli-vs-jus-sanguinis/ Because the US has, since its inception, been a nation of immigrants from many differing cultures, it makes a great deal of sense. The same rules apply throughout most of the Americas settled by immigrants from many different nations. Thomas and Alito condemn the concept as medieval and feudal.
The alternative used in most European countries is “ius sanguinis”, the law of the blood; in other words, your nationality is defined by your parents and grandparents, your ancestors’ nationality. Once Irish, for example, always Irish and indeed you have a right of return. In Iceland, for example, families can trace their ancestry back for many centuries. In the USA by contrast, many citizens cannot trace their ancestors living here back for more than a few generations, or often, none at all. We are a nation of immigrants who have dispossessed the original Native Americans living here.
Ius solis is a straightforward concept easy enough to say, to understand, and to administer, “I was born here and I’m a US citizen”.
Justice Clarence Thomas writing for the three dissenters, claimed that the 14th Amendment was only about citizenship for freed slaves and should be so limited. It had been adopted after the Civil War to reverse the odious 7-2 Supreme Court’s Dred Scott decision that black men and women could never be US citizens; that was a privilege reserved only for white Americans.
Justice Ketanji Brown Jackson in her concurrence rebuts Thomas forcefully and persuasively, pointing out the legislative history of the amendment was universalist, not race or color specific, including protections for other disfavored groups of that era such as immigrants, Chinese, and gypsies in addition to the emancipated slaves. The Know-Nothings, the anti-Catholic, the anti-immigrant riots, and the anti-Coolie Acts were hardly a distant, obscure, historical footnote, but were recently lived reality for those drafting and debating the 14th Amendment. In her reading of the historical record, the drafters and crafters of the Civil Rights Act and the 14th Amendment were transitioning the US to a casteless society after the bloody divisions of the Civil War.
Justice Thomas said the protections of the 14th Amendment’s citizenship clause were conditioned on the “domicile” of the parents. By domicile, he is not referring to your home or where you live, but rather whether your birth parents were legal permanent residents or US citizens at the time of your birth. He then sets up a straw man, saying Trump’s executive order was all about stopping birth tourism – wealthy pregnant Chinese women who supposedly fly to the states to give birth so their newborn will be a US citizen. Trump, Miller and Thomas’ real targets are undocumented women giving birth, not the occasional rich Asian “birth tourist” – hardly a matter of any real concern for the drafters of the 14th Amendment as airplanes had not yet been invented.
Thomas’ opinion includes a lengthy discussion indeed homage of “domicile” as the place where you pay your personal taxes, where you get married and divorced, where you maybe own property, where you work. To me, that sounds quite a lot like the homes of undocumented workers and their families who work very hard, stay out of trouble, pay their taxes, send their children to local schools, rent or own homes, pay their utility bills, do the lowest paid least desirable jobs – the very people who Trump targets in his Executive Order to deny citizenship to their US born citizen babies.
Gorsuch, one of the dissenters, at least had a level of common decency to be somewhat appalled at what Trump and Miller are proposing. “Still, I wonder: Is a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents’ presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this Court’s longstanding recognition that every person is domiciled somewhere?” In other words, are we headed back to square one of Dred Scott from the 1850’s, a 13 million person population of stateless children and parents? Are the ICE raids of Trump and Miller in 2025-6 that much different from the slave catchers and slave patrols of the 1850s? Have we just dressed them up in armored vests and helmets, given them modern weaponry and endowed them with lots of governmental immunity?
Justice Kavanagh said he concurs in the majority’s result but not in their analysis, finding that birthright citizenship is protected by the Civil Rights Act, not by the 14th Amendment. Thus, Congress can change and update it to reflect modern day concerns about immigrants (no matter their status).
Justice Alito issued a lengthy dissent discoursing on his concerns that Congress, not the Court, is the right place to make immigration policy, and it’s kind of a shame on US politicians that they have not done so since about 1986. But nevertheless, the Court should stay out of it. And what then? leave it to Executive Orders, drafted by Miller and signed by Trump, with no Congressional debate or any say so, to overrule decades of judicial precedent and administrative practice?
The United States of the 19th Century wrestled with slavery and racism towards black Americans, with efforts to exterminate and pen in Native American tribes, and with hostility to new immigrants who were different than the Anglo-Saxon stock of some original settlers. We fought a Civil War, two World Wars, had two separate Civil Rights eras, gone through a Great Depression and a more recent Great Recession, and we have made some progress. We are regressing badly. We must honor and emulate the battles and struggles of our ancestors for a more perfect union from our Independence to the present day.