How the modern Supreme Court might look at the 14th Amendment and birthright citizenship

CNN — In the few days since he returned to the White House, President Donald Trump’s sweeping executive orders and mass pardons have shattered political and legal norms. It states: “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.” Another factor distinct to this moment: The current Supreme Court majority takes an “originalist” approach, and the history and tradition underlying the 14th Amendment and the 1898 case would make reversal of Wong Kim Ark difficult to justify. Writing last year in the Georgetown Immigration Law Journal, Professor Sandra Rierson said the expansive text of the 14th Amendment, including the phrasing regarding jurisdiction, “had a clear and long-standing meaning under the common law that existed” when the Amendment was adopted, and “that meaning was reiterated and explained throughout the congressional debates.” Rierson, whose essay traced the proliferation of proposals to end birthright citizenship, observed that modern opposition has arisen “in the context of escalating hostility towards immigrants, especially non-white immigrants.” Video Ad Feedback Trump takes executive action to end birthright citizenship 02:47 - Source: CNN Trump takes executive action to end birthright citizenship 02:47 After Trump issued his order this week, Rierson, who teaches at Western State College of Law in California, posited that the conservative justices who control the court would, based on their own reasoning, be unlikely to reverse precedent. “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” The court concluded, “To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.” The court noted that Wong Kim Ark’s parents had at the time “a permanent domicil and residence in the United States,” yet the court did not condition its interpretation of the 14th Amendment on that fact. During his 2024 campaign he vowed that on Day One of a second term, he would order an end to birthright citizenship, which he insisted was “based on a historical myth and a willful misinterpretation of the law.” Monday, after again taking the oath of office from Chief Justice John Roberts, Trump laid out his order called “Protecting the Meaning and Value of American Citizenship.” He opened by stating that “The privilege of United States citizenship is a priceless gift.” He said Dred Scott misinterpreted the Constitution “as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.” Then he asserted: “But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.