These Justices Are Not Impartial
Why such a slim Supreme Court majority upheld birthright citizenship
In 1898, the same Supreme Court that upheld Jim Crow segregation as constitutional also upheld the Fourteenth Amendment’s guarantee of birthright citizenship, by a 6–2 vote. This was a profoundly racist Court in a profoundly racist era—around the peak of the lynching epidemic—that nonetheless could find no way around the plain text of the Constitution, and was forced to affirm that people of Chinese descent could be citizens.
Nearly 130 years later, in our much more enlightened time, that bedrock guarantee drew more opposition at the Supreme Court. This week, in Trump v. Barbara, a 6–3 majority struck down President Trump’s executive order repealing birthright citizenship for undocumented immigrants and temporary visitors. But only five justices voted to invalidate the order on constitutional grounds. The other four indicated varying degrees of openness to narrowing birthright citizenship, if not exactly along the lines that the Trump administration had sought.
By ruling with such a slim majority, “the Court has just handed right-wingers a new bloody shirt to wave in every single political campaign,” Aderson Francois, a law professor at Georgetown University, told me. “The main legacy of the decision is that for the next few years, this will become the new Roe v. Wade.” After all, conservatives now know they are only one vote away from eliminating birthright citizenship by judicial fiat.
The Fourteenth Amendment has not changed since 1898. What have changed are the Republican Party and the modern conservative movement. Trump believes that “if you import the Third World, you become the Third World.” His rise to power began with his willingness to be a standard-bearer for a movement that cast the first Black president as an illegitimate invader and demanded to see his birth certificate. Trump’s second-term campaign promised “mass deportation” of those very same “Third World” immigrants, and since taking office, he has established an effectively whites-only refugee policy, specifically for white South Africans, illustrating that his objection is less to immigration itself, or to immigrants from the “Third World,” than to immigrants who are not white.
Lawrence Glickman: Americans once understood birthright citizenship
Trump’s logic holds that the growing number of nonwhite people in America is a threat to the nation, whose fundamental character is racial, and that the country is the exclusive property of white Christians rather than all of its people. Birthright citizenship is an obstacle to this idea of America because it makes anyone born here a citizen, regardless of their race, religion, or origin—even if that origin is “the Third World.” As Trump goes, so goes the Republican Party. Neither the text of the Constitution nor more than a century of precedent have proved a match for the partisan-motivated reasoning of several supposedly impartial right-wing justices, whose views on what the Constitution says shift with the ideological currents.
The plessy v. ferguson decision upholding jim crowsegregation under the rubric of “separate but equal” is only the Supreme Court’s most well-known act of vandalism against the Constitution after Reconstruction. In the 1876 case U.S. v. Cruikshank, the justices said that the Fourteenth Amendment did not prevent private discrimination, overturning the convictions of white men who had massacred Black men. In the 1883 Civil Rights Cases, they overturned the Civil Rights Act, saying that Congress could not ban discrimination by private actors. In the Insular Cases, a series of decisions related to the territories wrested from Spain after the Spanish-American War, the justices ruled that the people living in American imperial possessions were “alien races” and “savage tribes” unfit for self-rule but not for American domination.
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The same Court was nonetheless forced, in the 1898 case United States v. Wong Kim Ark, to conclude that the Fourteenth Amendment conferred citizenship on a Chinese American man born in San Francisco. The justices did this despite the existence of racially targeted immigration restrictions that they likely agreed with as a policy matter. And they observed that the birthright-citizenship clause’s references to “jurisdiction” were meant to exclude only “children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State.” The decision confirmed “the ancient rule of citizenship by birth within the dominion.”
In his majority opinion in Barbara, Chief Justice John Roberts reiterated that understanding, noting that “the Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory.” Roberts added, “If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design.” But the chief justice and Justice Amy Coney Barrett were the only Republican-appointed justices willing to accept the plain language of the clause, which states 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.” Their Republican-appointed colleagues, left to argue against the plain text of the amendment, fumbled for legal theories that would give Trump at least some of what he wanted.
Justice Brett Kavanaugh joined with the majority on the judgment but argued that birthright citizenship was imposed by the 1940 Nationality Act and that it could therefore be repealed by a simple act of Congress. Justice Clarence Thomas claimed that the birthright-citizenship clause and the Fourteenth Amendment writ large were intended to benefit only the newly emancipated. (This interpretation, Justice Ketanji Brown Jackson noted, is belied not just by the authors of the amendment but by the words of the formerly enslaved themselves.) Thomas, whose opinion Gorsuch joined, focused on the idea that the amendment granted birthright citizenship to those “domiciled” in the United States. That word does not appear in the amendment itself; it is a main focus of the dissent in Wong Kim Ark. But even Thomas would not go as far as Trump had demanded, which was to deny citizenship to the children of all undocumented immigrants. After all, many undocumented have been “domiciled” in the U.S. for years and came here intending to stay.
Samuel Breidbart, an attorney with the Brennan Center, told me that distinguishing between short-term and “domiciled” immigrants is a minefield. “Establishing domicile is a very fact-intensive inquiry. It would require substantial administration and evaluation of each individual case to know: Does somebody intend to remain here? Have they established domiciles? What are the prerequisites for doing so?” Breidbart said. The authors of the Fourteenth Amendment, he added, “knew that you could not have exemptions, because you could not have a rule that would be so unwieldy, so unworkable. You needed a clear rule, a broad rule, an inclusive rule. That’s what the Fourteenth Amendment established.”
The only member of the Court extreme enough to give Trump everything was Justice Samuel Alito. His opinion largely focused on illegal immigration as a policy problem, including a digression listing several countries where most undocumented immigrants in the U.S. come from, ostensibly to note that those nations grant citizenship to children born elsewhere. It is unclear what this has to do with the text of the amendment, and it could easily have been handled in a footnote; its inclusion in the body of the dissent seems intended to emphasize the alien nature of the people under discussion. Whether undocumented immigrants are from Mexico or Guatemala has no bearing on whether “all persons born” means “all persons.”
The dissenters also dismissed the English-common-law history of birthright citizenship as a “feudal principle,” a “medieval rule,” and a remnant of “the darkness of the middle ages,” having more “to do with being a subject than a citizen.” Legal traditions from hundreds of years ago are apparently vitally important if one wants to ban abortion or strike down restrictions on firearms, but they become barbaric anachronisms the second they diverge from the policy goals of the Republican Party.
The fourteenth amendment was passed in the aftermath of the Civil War to overturn the 1857 Dred Scott v. Sandford decision, which held that Black people could never be citizens of the United States. In antebellum politics, Democrats had long advocated for the phrase “all men are created equal” to be taken metaphorically rather than literally. Senator John C. Calhoun of South Carolina famously declared that “ours is the government of the white man,” and the Fourteenth Amendment, which overturned the Dred Scott decision, was meant to silence forever this “horrid blasphemy,” in the words of Representative John Bingham, one of its authors.
“We began by declaring that ‘all men are created equal.’ We now practically read it, ‘all men are created equal except negroes.’ When the Know-nothings get control, it will read, ‘all men are created equal except negroes and foreigners and Catholics,’” Abraham Lincoln famously wrote to Joshua Speed in 1855. “When it comes to this, I should prefer emigrating to some country where they make no pretence of loving liberty—to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.”
In the decades after Reconstruction, these lofty aspirations towards multiracial democracy were suffocated by white terror in the South and white indifference in the North. By the time that Wong Kim Ark was decided, the popular consensus was that the “Anglo-Saxon” race had a global destiny to dominate the lesser races to spread the paradise of “civilization,” at gunpoint if necessary. This was a matter of bipartisan agreement—Republicans needed white supremacy to justify territorial expansion, and Democrats needed it to defend Jim Crow. Perhaps that very consensus on white supremacy saved the Fourteenth Amendment—it had no partisan valence to turn the justices against it. Still, the fact remains that even these men, knuckle draggers by modern standards, lacked the arrogance to rewrite the birthright-citizenship clause of the Constitution to better fit their prejudices.
That would not occur until the present, and the cottage industry of Trumpian legal apparatchiks who would conjure any fiction to justify the president’s whims. Thomas observed in his dissent that “the President’s initiative generated a groundswell of new scholarship.” Indeed it did, to the extent that you can call it such. That some right-wing legal academics rushed to fabricate a justification for Trump’s goals is not to the credit of the scholarship or those scholars, nor to the justices who embraced them. In reaction to the ruling, some right-wing figures made no secret of their disappointment that five justices had not seen fit to reconstitute a subordinate caste of people in the United States whose rights could be violated with impunity.
Heritage Foundation President Kevin Roberts accused the Court in a social-media post of having “cheapened the sacred value of American citizenship,” because “universal birthright citizenship erases any uniquely American birthright—a distortion that was never the meaning or intention of the 14th Amendment.” This language of degradation or devaluing is used by two of the dissenting justices—Alito wrote that the majority opinion “degrades” American citizenship, and Thomas asserted that the decision “devalues” it.
Kevin Roberts and others go further than the dissenting justices but nevertheless echo their view that sharing American citizenship with those they disdain “degrades” that citizenship. Yet, as the chief justice wrote, citizenship is “the right to have rights.” This seems too narrow to me—inalienablemeaning what it means—but either way, that right is not “degraded” by sharing it with people unlike yourself.
The language of degradation is illuminating because it echoes antebellum and Reconstruction discourse. As the historian James McPherson has written, defenders of slavery warned that abolitionists wanted to “degrade the white man to the negro’s level”: During the Civil War, “Democrats and even some Republicans reasoned that to pay Negro troopers the same wages as white soldiers would degrade the white man.” The historian Manisha Sinha documents opponents of Reconstruction who saw equal rights as an attempt to “degrade the white race to the level of the black race,” which was a crime “against the civilization of the age and against God.”
Elsewhere, less tactful conservatives expressed directly what the dissenting justices chose to do in euphemism. Stephen Miller, who runs immigration policy for the Trump administration, told Fox News that “we have people from all over the world, from third-world nations, nations that on their own would have never invented the wheel, let alone modern technology, let alone medicine, let alone air travel.” He went on: “They can just come into the country, have a baby at a hospital paid for by you and me, and then that baby is automatically a citizen? That baby can sit on a jury when he turns 18 and sit in judgment of you and sit in judgment of me and sit in judgment of our loved ones? Can decide who our mayors are? Our governors are? Our presidents are?” Miller’s long-standing view is that what ruined America was the repeal of eugenics-inspired immigration restrictions that had bannedimmigration from Asia and Africa and from nations in Europe deemed to be composed of lesser white races.
There is very little difference between Miller’s position—if you come from a “Third World nation,” you are inferior—and that of antebellum Democrats and the opponents of the Fourteenth Amendment at the time it was adopted: American citizenship is degraded by having to share it with the biologically inferior. The justices are elite lawyers with the ability to obfuscate this project and ignore its aims, but the rest of us need not pretend. To put it bluntly, Miller’s objection, as articulated here, is not to birthright citizenship. It is to the idea that “all men are created equal.”
The politics of Trump are but the latest iteration of the politics of John C. Calhoun, who feared that going beyond the annexation of Texas to seize Mexico would “incorporate a people so dissimilar from us in every respect—so little qualified for free and popular government” that it would lead to “certain destruction to our political institutions.” In a similar vein, Calhoun argued that racial equality would lead to “a degradation greater than has ever yet fallen to the lot of a free and enlightened people.” It is no irony that Trump and his enablers, much like Calhoun and his partisans of human bondage, prove themselves time and again the greatest threat to the destruction of those institutions.
Thus the blasphemy that Reconstruction-era Republicans sought to expunge survives. Jackson had it right when she observed that the “Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.”
There is little left to Trumpism however, once you remove its desire for subordinate classes. Despite the narrow ruling on birthright citizenship, the project to transform inalienable rights into what James Madison called “parchment barriers,” little more than rights on paper, continues apace. In its rulings on trans rights and voting rights, the Roberts Court has been a willing partner in inverting the purpose of the Reconstruction amendments, sanctioning invidious discrimination rather than stopping it. Like the PlessyCourt, a majority of today’s justices were unwilling to remove the cornerstone of nonracial citizenship in America, and that is worth celebrating. But this is less a victory than a reprieve.
