The Supreme Court Just Cheapened Every American’s Citizenship

Civilizations have always reserved their highest honors for the question of membership. Monarchies bestowed titles of nobility; empires conferred the dignity of imperial citizenship. A republic has only one honor that finally matters, and that is citizenship itself.

     The American Republic inherited no aristocracy and created no hereditary rank. In their place it made citizenship the highest civil status the nation could confer — not a travel document, and not an entitlement to benefits, but admission into a political community bound by common allegiance and a common constitutional inheritance. Last week, in Trump v. Barbara, the Supreme Court diminished that status. The decision is being reported as a ruling about immigration. It is something more consequential: a ruling about what an American citizen is.

     The Fourteenth Amendment does not make citizens of everyone born on American soil. It makes citizens of those born here “and subject to the jurisdiction thereof.” Those five words were not surplusage. They reflected a choice the country had made at its founding.

     Under English law, a person born within the King’s dominions was his subject for life, whether he consented or not; allegiance was a consequence of the place of one’s birth. The American Revolution rejected that idea. The Declaration of Independence held that governments derive “their just powers from the consent of the governed,” and it closed by pronouncing Americans “Absolved from all Allegiance to the British Crown.” Citizenship in the new republic was to rest on allegiance owed to that republic — not on the accident of where a person happened to be born. Congress confirmed the point in the Expatriation Act of 1868, enacted alongside the Fourteenth Amendment, which declared the right to renounce one’s allegiance “a natural and inherent right of all people.”

     The men who wrote the Citizenship Clause said what its jurisdictional requirement meant. Senator Lyman Trumbull, chairman of the Judiciary Committee, explained that “subject to the jurisdiction” meant “not owing allegiance to anybody else.” Senator Jacob Howard, who drafted the language, said it required “a full and complete jurisdiction” — “the same jurisdiction in extent and quality as applies to every citizen.” Not the partial, territorial jurisdiction to which every tourist and temporary visitor is subject, but complete political allegiance.

     The Court had an answer for this testimony. It called it “a handful of ambiguous floor statements” and moved on. The principles of the founding entirely aside, the most direct evidence we have of what the framers meant, offered by the very senators who chose the words, also, was set aside as too ambiguous to settle the question.

     In its place the Court offered a single case: United States v. Wong Kim Ark, decided in 1898. The majority treats Wong Kim Ark as having settled this question more than a century ago. It did not.

     Wong Kim Ark concerned a man born in the United States to parents who were lawfully and permanently domiciled here. The opinion says so repeatedly; the word “domicile” and its variants appear roughly thirty times. The case did not involve the child of a temporary visitor, and it did not involve the child of a parent present in the country illegally — the two categories the President’s order addressed. A holding is bounded by the facts before the court. Whatever the Wong Kim Ark opinion said beyond those facts was dictum, however often it has since been repeated. The majority was untroubled by the distinction. It observed that the word “domicile” seldom appears in the ratification debates, without pausing over the thirty-odd times it appears in the very opinion it treats as controlling.

     More telling is what the Court did not address at all. Elk v. Wilkins — this Court’s own holding that a man born on American soil was not a citizen because at birth he owed allegiance to his tribe rather than to the United States — is confined to a single footnote. The Indian Citizenship Act of 1924 goes unmentioned, though its very enactment presupposes that birth within the United States had not already made the country’s native population citizens. So does the repatriation of the 1930s, when roughly 1.2 million American-born persons of Mexican descent were removed to Mexico and no one thought to argue that their citizenship forbade it. So do the federal passport applications that, until 1966, required an applicant to state his father’s naturalization status — a requirement that would have been idle had birthplace alone ever sufficed. And to support its claim that the broad rule is “well-settled,” the Court leans on a pair of mid-twentieth-century immigration decisions in which the citizenship of a child was assumed in passing and analyzed by no one. That is not precedent. It is dictum resting on dictum.

     Justice Kavanaugh, who concurred in the judgment, at least saw the difficulty. He acknowledged that "the constitutional issue is not straightforward, much as we might want it to be," and he concluded—contrary to the majority—that the President's order does not violate the Fourteenth Amendment. He would set it aside on a narrower ground: that a 1940 statute borrowed the Amendment's language, and that Congress and the Executive have read that statute the same broad way, in his words, "all the way through 2025." Because the government has long acted as though the rule were settled, he reasoned, only Congress may now unsettle it.

     The majority and Justice Kavanaugh travel different roads to the same destination, but the means are the same. The majority, having pronounced the framers' explanations ambiguous, rests on the fact that the Court has read the Clause broadly for more than a century: "We see no reason to depart from that view today." Justice Kavanaugh rests on the eighty-five years in which Congress and the Executive have done the same. In each case, at the very point where the text and its authors cut against the broad rule, the decisive appeal is not to what the Fourteenth Amendment says, but to what the Court has long said and the government has long done.

     That is not how a written constitution is meant to work. It is, however, very much how the Roman Republic worked. Rome had no written fundamental law; it governed by the mos maiorum, the custom of the ancestors—the way things had always been done. The arrangement proved fragile, for custom is a poor guardian of liberty: in the end it belongs to whoever holds power long enough to turn his own practices into precedent. The Framers gave us a written text precisely so that the meaning of our most basic law would not rise and fall with the habits of those who administer it. To fix the meaning of the Citizenship Clause by what the government has customarily done, rather than by what the Clause says and its authors intended, is to exchange our inheritance for a far older and more precarious one.

     I do not write as a disinterested observer. I helped assemble much of this historical record in an amicus brief filed on behalf of the Claremont Institute’s Center for Constitutional Jurisprudence. Whether one agrees with our conclusions is beside the point. Courts exist to answer arguments grounded in text and history — and a court that unsettles the meaning of citizenship owes those arguments more than a single 1898 case invoked as a place to stop looking.

     A nation’s understanding of citizenship is, in the end, an understanding of itself. If citizenship is only the legal consequence of being born within a set of borders, it no longer marks membership in anything. It becomes a matter of administration — and what is merely administrative is, in time, cheap.

     The practical objections to the decision — that it will reward those who break our immigration laws over those who keep them — are real, but they are for Congress to weigh. The deeper loss is one of meaning. The Court handed down this decision four days before the country marks the 250th anniversary of its independence. Two and a half centuries after Americans staked their lives on the principle that legitimate government rests on consent and allegiance, the Court has informed their heirs that the highest status the republic can confer requires neither — only that one be born in the right place at the right moment.

     That is a remarkable thing to say. It is also, in my view, wrong — as a matter of text, of history, and of what the men who wrote the Fourteenth Amendment said they were doing.

Trump v. Barbara - CCJ Amicus Brief.pdf

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