{"id":1261,"date":"2026-08-01T04:39:05","date_gmt":"2026-08-01T04:39:05","guid":{"rendered":"https:\/\/nationallogisticspost.com\/?p=1261"},"modified":"2026-08-01T04:39:05","modified_gmt":"2026-08-01T04:39:05","slug":"birthright-citizenship-upheld-inside-the-supreme-courts-5-4-decision-in-trump-v-barbara","status":"publish","type":"post","link":"https:\/\/nationallogisticspost.com\/?p=1261","title":{"rendered":"Birthright Citizenship Upheld: Inside the Supreme Court\u2019s 5-4 Decision in Trump v. Barbara<\/i>"},"content":{"rendered":"
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T<\/span>here has been much heated debate over the decision of the Supreme Court in the case of\u00a0Trump v. Barbara<\/em>. The circumstances and facts have ignited quite a firestorm.<\/p>\n

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The issue at hand is whether the Constitution grants citizenship to children who are born to parents unlawfully or temporarily present in the United States. From the outset, that question is problematic. For starters, it is difficult to determine the number of children in this category. But since border control over periods of years was lax and enforcement spotty, the number of illegal immigrant mothers, according to the\u00a0Pew Research Center, \u201cgrew rapidly\u201d from 2019 to 2023. Pew\u2019s estimate is that births to mothers who are here illegally is approximately 320,000 children annually, meaning that those claiming birthright citizenship over a period of years could well total in the millions. So, the issue of who gets citizenship is critical to a large number of people.<\/p>\n

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That said, in summary, the reasoning of the majority decision is textually weak \u2026 and misunderstands the limits of the actual holding in\u00a0Wong Kim Ark.<\/p>\n<\/blockquote>\n<\/div>\n

The lawsuit developed because of an Executive Order issued by President Trump aimed at bringing these numbers down. It provided that children born of parents who were here unlawfully or temporarily should not be entitled to citizenship by virtue of their birth.\u00a0The Supreme Court\u00a0in a 6-3 decision struck down the Trump executive order and, more importantly, ruled 5-4 that the Fourteenth Amendment guarantees citizenship essentially to everyone born on U.S. soil.<\/p>\n

The court\u2019s close divide, 5-4, on the issue of \u201cbirthright citizenship\u201d stems from \u201ctwo competing views\u201d of the 28 key words that make up the beginning of section 1 of the Fourteenth Amendment. It reads: \u201cAll 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.\u201d Those words constitute the only definition of \u201ccitizenship\u201d contained in the U.S. Constitution.<\/p>\n

The court\u2019s majority \u2014 Justices John Roberts, Amy Coney Barrett, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson \u2014 concluded one thing about what these words mean. The Roberts majority opinion was a little longer than the opinion of the\u00a0court \u2014 7,800 words. And the dissenters \u2014 Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, concluded another. The dissenters expressed their serious disagreement with the majority in lengthy dissents, with Thomas\u2019s dissent\u00a0at\u00a027,477 words and Alito\u2019s\u00a0at\u00a011,494.\u00a0\u00a0\u00a0<\/p>\n

The Battle of the Meaning of Words\u00a0\u00a0<\/strong><\/h2>\n

The Fourteenth Amendment begins: \u201cAll persons born \u2026 in the United States.\u201d\u00a0<\/em>In order to become a citizen, other than through naturalization, both the majority and the dissenters agree that this event of birth is essential. However, that is the end of their agreement.<\/p>\n

Is anything more than being \u201cborn on U.S. soil\u201d required for citizenship eligibility? For the court majority, the answer is essentially, no. Respected Fourteenth Amendment scholar\u00a0Richard Epstein\u00a0aptly describes themajority position this way: \u201cMere birth on U.S. soil results in automatic citizenship for the child regardless of the parents\u2019 presence in the United States \u2014 whether temporary or permanent, lawful or unlawful.\u201d According to the majority view, these \u201cbirthright\u201d claimants are entitled to all the \u201cprivileges and immunities of citizens,\u201d the result described in the second sentence in the Fourteenth Amendment.<\/p>\n

By contrast, the dissenters argue that there is more to qualifying for citizenship than \u201cbeing born in the United States\u201d because the Fourteenth Amendment continues with additional language immediately following the reference to being born here. The phrase is composed of two clauses:\u00a0\u201cAll persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.\u201d\u00a0<\/em>This phrase contains two separate requirements. Grammatically, there is the requirement \u201cto be born,\u201d which is connected byandto a second requirement, to be \u201csubject to the jurisdiction thereof.\u201d Defying the obvious grammatical arrangement, the\u00a0majority claims\u00a0that the language does not create two separate requirements. Instead, the justices say, being subject to the jurisdiction of the United States is the natural byproduct of being born here.<\/p>\n

The dissenters did not accept the majority\u2019s casually brushing the phrase \u201csubject to the jurisdiction thereof\u201d aside as being merely part of being born. The dissenters, being committed to a jurisprudential philosophy of paying close attention to the textof any document they are considering, insist that the second part of this phrase needs further explanation. They begin by probing the meaning by examining its historical relationship to the Civil Rights Act of 1866 (CRA). The reason for that approach will become obvious.<\/p>\n

The CRA\u2019s purpose was to guarantee citizenship to the newly freed slaves born on U.S. soil and making their home\/domicile here. However, the CRA was only legislation, and a different legislature could easily repeal it. Consequently, the Fourteenth Amendment was crafted to \u201cconstitutionalize\u201d the CRA, a fact which is undisputed, thus removing any doubt about the authority of Congress to pass it. Extremely important for interpretive purposes is the fact that what the Civil Rights Act meant and required should help us to understand what the Fourteenth Amendment means and requires.<\/p>\n

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When the dissenters scrutinize the language of the Civil Rights Act, they find that it specifically denies citizenship to anyone born in the United States who is subject to any foreign power. The exact language of the CRA is that \u201call persons born in the U.S. and not subject to any foreign power\u201d are citizens. Professor\u00a0Epstein rightly argues\u00a0that since the Fourteenth Amendment was understood to place the Civil Rights Act on firmer constitutional footing, the amendment itself cannot be read as requiring lessthan the Civil Rights Act required.<\/p>\n

Therefore, the dissenters argue that being born plusowing allegiance to America alone \u2014 that is, being completely subject to U.S. jurisdiction \u2014 are the dual requirements of citizenship under the Fourteenth Amendment. While being a bit complex, the dissenters are using airtight textual analysis. Necessarily, this reading of (1) being born on U.S. soil and (2) not being subject to foreign powers, excludes the children of aliens born subject to another nation\u2019s powers and runs counter to the majority\u2019s stance on citizenship.<\/p>\n

There is another counterargument to the majority\u2019s claim that \u201csubject to the jurisdiction thereof\u201d is not a separate requirement, that it is merely a byproduct of being born on U.S. soil. There does exist a broad, automatic expression of jurisdiction offered to all by the drafters of the Fourteenth Amendment. In the Equal Protection Clause of the Fourteenth Amendment, \u201cequal protection\u201d is promised to any person \u201cwithin its jurisdiction.\u201d The two clauses are different with different purposes. The citizenship clause is a limiting clause, requiring absolute allegiance of those seeking citizenship, and by doing so, explaining who can gain and who cannot gain citizenship. The dissenters argue that the citizenship clause restrains by means of the language \u201csubject to the jurisdiction thereof.\u201d By contrast, the equal protection portion of the Fourteenth Amendment freely extends to \u201cany person within its jurisdiction\u201d the promises of equal and fair treatment. In both cases, jurisdiction is discussed, but one jurisdictional requirement is intended to limit participation and the other, with different language, is to freely offer coverage. If, indeed, the drafters wanted citizenship to be automatic they could have used the all-inclusive \u201cwithin its jurisdiction\u201d in the citizenship clause. They did not because that was not their intention.<\/p>\n

A Feudal Rebirth to Support Birthright Citizenship?<\/strong><\/h2>\n

The majority makes another attempt to support its claim of citizenship based solely on birth by making a connection with the English common law doctrine of\u00a0jus soli,\u00a0<\/em>\u201cthe right of soil.\u201d This choice is certainly a strange one in the very year America celebrates it 250-year separation from England. Be that as it may, according to the doctrine of\u00a0jus soli<\/em>, a doctrine of feudal origin, a child born within the king\u2019s realm was made a subject of that sovereign upon birth, permanently, with no consent or confirmation needed on his part. The child, being born within the king\u2019s dominion, immediately owed obedience and allegiance to the king and the king owed his new subject protection. \u201cThis view crossed the Atlantic,\u201d says Chief Justice Roberts, although there does not seem to be strong evidence for that. Justice Alito says frankly that there was \u201cno such thing as a \u2018citizen\u2019 of England, Scotland, or Ireland. The inhabitants of the British Isles were the king\u2019s subjects.\u201d<\/p>\n

Why the majority chose to endorse this old doctrine is perplexing. Relying on a feudal version of citizenship by birth-allegiance to the king runs afoul of the essence of American citizenship. As Justice Gorsuch says, the glory and dignity of true American citizenship is offered \u201cto any child born in this country to parents who have made this Nation their permanent home.\u201d It is consensual, freed from the bonds of feudal duties. Moreover, as the dissenterspoint out, the Declaration of Independence proclaimed all allegiances to the British Crown absolved. Consequently, the argument of the majority based on\u00a0jus soli<\/em>\u00a0does not seem to resolve but clouds the issue of birthright citizenship.<\/p>\n

The\u00a0Wong Kim Ark<\/em>\u00a0case: Convincing or Confusing?<\/strong><\/h2>\n

Both the members of the majority and the dissenters made reference to the oldest Supreme Court case that takes up the issue of birthright citizenship: the 1898 case of\u00a0Wong Kim Ark<\/em>. The massive immigration of Chinese to this country in the late 19th\u00a0century serves as the backdrop to this case. That immigration wave was met with hostility. By statute, Chinese immigrants could not be naturalized and in fact, in 1882, Congress banned any further Chinese immigration under the Chinese Exclusion Act.<\/p>\n

Now to the case. Wong Kim Ark\u2019s parents, who were of Chinese descent, had arrived in the United States earlier than the ban and were described in court documents as having \u201cestablished and enjoyed a permanent domicile and residence\u201d in California where Wong Kim Art was born in 1873. He considered his home to be in America. He traveled back to China but at the end of a second return trip he was refused admission on the ground that he was \u201cnot a citizen.\u201d<\/p>\n

The majority in\u00a0Trump v. Barbara\u00a0<\/em>relies heavily on this case, with Chief\u00a0Justice Roberts\u00a0writing: \u201cWhat the Court held in\u00a0Wong Kim Ark<\/em>\u00a0was simple: the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States.\u201d That characterization of\u00a0Wong Kim Ark<\/em> conflicts with the language of the actual holding of the case. Justice Gray set out the holding: \u201c[A] child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United State, and are carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.\u201d How to interpret this?<\/p>\n

As\u00a0Professor Edward Erler\u00a0explains it: \u201cTo say that children of legal aliens are entitled to citizenship is one thing; [Wong Kim Ark<\/em>] after all, their parents are in the country with the permission of the United States. It is entirely different with illegal aliens, who are here without permission.\u201d Justice Alito puts it this way: \u201cWong Kim Ark\u00a0<\/em>is therefore best understood as holding that people who are lawfully present here, establish the United States as their intended permanent home, and do everything within their power to become United States citizens can be seen as no longer subject to foreign power.\u201d That is, they have become citizens. However, that is a far cry from the far different determination that children of aliens are automatically citizens as the majority maintains.<\/p>\n

Obviously, this controversial case of\u00a0Trump v. Barbara<\/em> involves many nuances and much dispute. That said, in summary, the reasoning of the majority decision is textually weak, introduces questionable parallels with the ancient doctrine of\u00a0jus soli<\/em>, and misunderstands the limits of the actual holding in\u00a0Wong Kim Ark<\/em>. As a result, it spawns a new magnet to attract migrants \u2014 birthright citizenship. That reality will only compound the already muddled state of U.S. immigration law and policy.<\/p>\n

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Naval Air Station Key West is a state-of-the-art facility for air-to-air combat fighter aircraft of all military services and provides world-class pierside support to U.S. and foreign naval vessels. U.S. Navy photo by Mass Communication Specialist 2nd Class Brian Morales\/ Released"},{"@type":"BreadcrumbList","@id":"https:\/\/nationallogisticspost.com\/?p=1261#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/nationallogisticspost.com\/"},{"@type":"ListItem","position":2,"name":"Birthright Citizenship Upheld: Inside the Supreme Court\u2019s 5-4 Decision in Trump v. 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