Today the Supreme Court ruled 6-3 that the Constitution requires automatic citizenship for the children of illegal immigrants and temporary visa holders born on American soil. Chief Justice Roberts wrote the majority opinion. Three justices, Clarence Thomas, Neil Gorsuch, and Samuel Alito, dissented.
Alito did not mince words. He called it one of the most important decisions in the history of the Court, and a serious mistake.
He is right.
This was never supposed to be a hard case. The text of the 14th Amendment was written by men who had just buried six hundred thousand Americans fighting over whether a human being could be property. It was written to settle one specific question. Today the Court used it to settle a completely different one.
Start with why the amendment exists at all. After the Civil War, the defeated South refused to accept that the war had actually changed anything. Black Americans had been freed by law, but Southern legislatures passed Black Codes designed to trap them in conditions barely distinguishable from slavery. State courts in the former Confederacy ruled that free black Americans born on US soil were not citizens at all, leaning on the Supreme Court’s own monstrous 1857 Dred Scott decision, which had held that black people could never be citizens regardless of where they were born.
Congressional Republicans, the party of Lincoln, would not accept that. They passed the Civil Rights Act of 1866 over a presidential veto specifically to guarantee citizenship to freed slaves. When that statute alone proved legally fragile, the same Republican Congress wrote the 14th Amendment to put the guarantee into the Constitution itself, permanently, where no future Congress or hostile court could strip it away again.
That is the entire history. It is not abstract. It is not ambiguous. The amendment was the direct constitutional response to a defeated South still trying to deny citizenship to people who had every right to claim it. It was never written as an open invitation extending automatic citizenship to the children of anyone who could physically cross a border and give birth on the other side of it.
This is exactly the argument Thomas made in his dissent today, joined by Gorsuch. He wrote that the Citizenship Clause and the Civil Rights Act of 1866 guaranteed citizenship to persons born and domiciled in the United States, and that neither one guaranteed citizenship to persons who were not domiciled here at all. Thomas pointed out that for decades after ratification, the federal government regularly denied citizenship claims from children born here whose families had no permanent home in the country. That was not some fringe interpretation. That was standard practice for a generation after the amendment was ratified.
Thomas went further, and it is worth sitting with. He wrote that the majority’s ruling adds to the sad history of the 14th Amendment, an amendment designed and understood to secure equal rights for freed black Americans but instead repurposed today for a political project the Reconstruction Congress never supported. Read that again. A sitting justice just said, on the record, that the Court took an amendment written to protect freed slaves from a vengeful South and stretched it into a magnet for a completely unrelated 21st century policy fight over mass immigration.
That is the heart of it. Subject to the jurisdiction thereof was never a throwaway phrase. It meant full and complete allegiance to the United States, not the temporary, divided allegiance of someone who crossed the border last month or flew in on a tourist visa to give birth and fly home. Children of foreign diplomats have always been excluded from birthright citizenship for exactly this reason, because their parents owe allegiance to another government. The same logic applies, with even more force, to someone who is in this country illegally and owes the United States nothing in the way of lawful presence at all.
Roberts leaned on a 1898 case, Wong Kim Ark, involving the American born son of legal Chinese immigrants who were lawfully domiciled here. That case never addressed illegal immigration because illegal immigration as a mass phenomenon did not meaningfully exist when it was decided. Stretching a 127 year old ruling about lawful permanent residents into a blanket rule covering anyone who enters the country unlawfully is not following precedent. It is inventing a new one and hiding it inside an old citation.
The practical stakes are not abstract either. An estimated 255,000 children are born every year in this country to parents with no legal status. Under today’s ruling, that number continues, indefinitely, with no input from Congress, no debate, and no vote. A policy with that scale of consequence for who gets to be an American should be decided by the American people through their elected representatives, not manufactured by reinterpreting a sentence written in 1868 to answer a question it was never asked.
Justice Kavanaugh, even while siding with the majority’s bottom line, said the quiet part out loud. He wrote that Congress still has the power to legislate new exceptions to birthright citizenship for children born to parents unlawfully or temporarily in the country. Congress simply has not done it yet.
That is where this fight goes now. The Court closed one door today, but it left another one open, and conservatives in Congress should walk through it immediately. The 14th Amendment was a promise to the freed slaves of a defeated Confederacy. It was never a blank check for every government on earth to outsource its citizenship decisions to American maternity wards. Thomas, Gorsuch, and Alito read the history correctly today. Now it falls to elected lawmakers to finish the job the Court refused to.
