Originalism and Birthright Citizenship: Solid Ground in an America Unmoored (Part 1 of 2)

As Trump left office in January of 2021, those across the legal spectrum looked back on a presidency that—for the Judiciary at least—had been a “GOP dream” that stood poised “[to] influence the law for years to come.” In just a single term, President Trump appointed three Justices to the Supreme Court, 54 judges to the appeals court, and 174 judges to the district courts—numbers commensurate with those of a two-term presidency. As Justices Gorsuch, Kavanaugh, and Coney Barrett filled the seats of Scalia, Kennedy, and Ginsburg, public interpretation of their appointments was influenced by Trump’s own emphasis on loyalty, as well as the fraught and highly polarized nature of their confirmations. Liberal fears of a Court dominated by adherence only to conservative political principles were confirmed when the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade, restoring state authority to decide abortion law, and revoking the long-held notion of a right to abortion which emanates from a right to privacy. However, a Justice of the Court best expressed these fearful sentiments; in her dissent in Dobbs, Justice Sotomayor wrote, “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. … Today, the proclivities of individuals rule.” This mode of viewing the Court, however, demonstrates a fundamental misinterpretation of its makeup and a shallow—or wilfully ignorant—understanding of the conservative Justices’ legal philosophies. Rulings such as Bostock v. Clayton County, in which Justice Gorsuch authored the majority opinion using textualist principles to extend the Civil Rights Act’s Title VII protections to LGBT individuals, have already hinted that the conservative bloc is neither as homogenous nor as in lockstep with the Republican party as many might believe. Without a proper understanding of originalism and textualism—legal philosophies that have gained a significant foothold on the Court amongst conservatives—both observers of the Judiciary and political players alike will grievously fail to see how the Court will respond to Trump’s recent barrage of executive orders, particularly those aimed at dismantling birthright citizenship. With a dispassionate perspective, one realizes that counterintuitively, the legal philosophies of the liberal Justices—pragmatism or living constitutionalism—better suit Trump’s tenuous arguments regarding the Fourteenth Amendment and birthright citizenship.

In Executive Order 14160 entitled “Protecting the Meaning and Value of American Citizenship” and issued on January 19th, 2025, President Trump asserted that “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States” and reasoned that “[t]he Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’” Almost instantly, the order found itself at the center of a firestorm of lawfare; state attorneys general, immigrant rights groups, the ACLU, and even individuals swiftly challenged its constitutionality under the Fourteenth Amendment. In CASA Inc. v. Trump, a range of plaintiffs alleged that Executive Order 14160 violated the “common-law principle of jus soli (or ‘right of the soil’)” and eroded a principle “woven throughout the laws of our nation[.]” In response, on February 5th, US District Judge Deborah Boardman issued a nationwide preliminary injunction against the order, a form of injunction rarely used before Trump’s tenure in the presidency—and a signal of the growing polarization gripping both American politics and the judiciary itself. Boardman’s injunction stated that Trump’s executive order “conflicts with the plain language of the 14th Amendment[.]” If it comes into full force, Trump’s order will have to allay these significant legal criticisms in an environment ostensibly friendly to the President—the United States Supreme Court. But, in an era when the Court is rife with textualists, these arguments will be compelling, even—and perhaps especially—for the conservatives. To further understand the nuanced issues of interpretation at hand, we should turn to a reservoir rich with meaning for the textualist or originalist: history and precedent.

It was not until 1898, in United States v. Wong Kim Ark, that the Supreme Court was forced to rule on the Fourteenth Amendment’s meaning for birthright citizenship. As the Chinese Exclusion Act of the time denied citizenship to Chinese immigrants, and a bilateral treaty with China held that no Chinese subject could become a naturalized US citizen, it was impossible for Chinese living in the United States, even for decades, to become citizens. But what of their children? Wong Kim Ark, born in San Francisco to Chinese citizens, returned to China at the age of 21 to visit his parents. Upon returning, he found himself denied entry on the grounds that he lacked citizenship. Ultimately, the Court held in a 6-2 ruling that, as Wong’s parents “[were] not employed in any diplomatic or official capacity under the Emperor of China, [he became] at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, ‘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.’” Justice Horace Gray’s majority opinion reasoned that “subject to the jurisdiction thereof” included all persons born within US territory subject to US laws, courts, and obligations—as persons could be arrested for crimes committed in the US regardless of their citizenship status.

Gray’s opinion noted the historical context of the Fourteenth Amendment’s passage: “Its main purpose doubtless was…to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States.” Gray went on, citing the long-held common-law principle of jus soli, meaning “right of the soil” in Latin, that was extended to those born in the realm of the English kings, and delineated groups excepted from these principles: “the children…of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions[.]” Herein lies the allure for the Trump administration in Wong Kim Ark. While Gray’s dissent thus firmly shut the door on the question of birthright citizenship for foreign nationals, it is possible that the administration’s lawyers believe that they can skirt the Justices’ use of stare decisis—deference to precedent—by defining illegal migrants in the US as part of an “invasion,” something not unfamiliar in the lexicon of Trump’s political rhetoric.

Will Vogel is a junior at Brown University studying Political Science and International and Public Affairs. He is a writer for the Brown Undergraduate Law Review and can be contacted at william_vogel@brown.edu.

Veronica Dickstein is a junior at Brown University studying International and Public Affairs. She is an editor for the Brown Undergraduate Law Review and can be contacted at veronica_dickstein@brown.edu.