I Read Trump v Barbara So You Don’t Have To

As someone who took 16 years to research and write a new book, Migration and the Origins of American Citizenship, a policy and legal history, I paid keen attention to the oral arguments (April 1) in Trump v Barbara and read the entire 194 page opinion issued yesterday, June 30. That opinion is the Supreme Court ruling about birthright citizenship. Briefly, SCOTUS ruled on the constitutionality of Trump’s Executive Order stripping birthright citizenship from babies if their parents are not “legally domiciled” in the US or if their parents owe “allegiance” to another country.

The political goal of Trump’s EO is ostensibly to abolish birthright citizenship for temporary travelers including “birth tourists” (foreign women who come to the US explicitly to have a child), and undocumented people. The unstated goal is to whiten America and to roll back the demographic changes since 1965 when immigration laws changed and the stream of immigrants became substantially non-white.

Except Trump’s EO doesn’t comport with the plain text of the 14th Amendment, existing federal statutes, controlling legal precedent, the legislative intent of the 19th century framers, or original public meaning of the clause. What has been a well established question beyond dispute resulted in a slim 5-4 ruling on the constitutional question of whether the birthright citizenship clause voids Trump’s EO. On the question of whether federal law bans the EO, the vote count was 6-3.

It is now de rigueur for federal judges to “do history” via originialsm or textualism. But the craft of history involves years of reading and immersing oneself in the secondary and primary literature, which a law degree doesn’t train for and the haste of writing an opinion does not allow. Those requirements, coupled with a reactionary GOP broad attack on public education at all levels, government erasure of parts of US history, and the AI infiltration of education eroding critical thinking mean that the dissents’ shoddy history might be accepted by the public because no one knows any better except a handful of legal historians.

In this post, I evaluate the accuracy of the historical claims made in Trump v Barbara. The dissents miss aspects of US migration and citizenship. The majority gets most of it right but their understanding of citizenship for different groups doesn’t explain the relational nature of that status historically—perhaps because they are focused on answering a narrow legal question. Or maybe because the justices don’t know the broader history of citizenship and migration.

Majority Opinion

The 31 page majority opinion written by Chief Justice Roberts mostly gets the history of migration and citizenship correct. They understand that the US legal system is a hybrid of British common law based on case law/legal precedent and US constitutional law, based on a written document of fundamental law. The majority also understand that intervening political events like the Civil War and the Reconstruction Amendments alter the meaning and coverage of constitutional protections from the original 1788 founding document.

-Bottom of pg. 6 of the opinion accurately reflects that before the 14th Amendment, it was not just that enslaved people had no formal citizenship, but that free Black Americans didn’t either. Pg. 7 shows the majority knows that the hierarchy of state and US citizenship was unclear for free Black people. If you were a citizen of Connecticut, were you also a national citizen? Free Black people applying for passports were denied by the State Department in the 19th century who said they were not US citizens. The birthright citizenship clause was to make unequivocally clear that both groups were US citizens by birth on US soil.

Thomas’ dissent would have you believe birthright citizenship was only for formerly enslaved people. If you believe that ahistorical assertion, it may sound farfetched to apply a protection for a such a targeted suis generis group to people arriving now.

-Pg 9 the majority knows that the framers of the 14th Amendment debated, discussed, and were aware other politically disfavored groups would be swept in to the protections of birthright citizenship and they did it anyway. These included the children of Chinese immigrants and gypsies. Chinese immigrants were a reviled immigrant group in the western states who began arriving in significant numbers first in California around 1850. So much of the debates around the 14th Amendment’s birthright citizenship clause and the 15th Amendment granting universal male suffrage was driven by concern about Chinese immigrants and their children gaining political rights.

In raising the point about the children of Chinese immigrants and gypsies, the majority is answering the ahistorical claim of Thomas’ dissent that the coverage of birthright citizenship is only for newly freed slaves.

-Bottom of pg 9 the majority understands and underscores what the 14th Amendment does and why overturning it is not as easy as passing a new federal law, much less a cursory EO. Roberts cites Senator Howard in saying the goal of the 14th Amendment was to place “the great question of citizenship” “beyond the legislative powers.” Instead of just passing a law like the Civil Rights Act of 1866, where birthright citizenship is first introduced, the Reconstruction Congress did it the hard way, going through the Article V procedure to amend the Constitution. They did so to put birthright citizenship beyond the easy reach of a future Congress, President, or SCOTUS that might come along and want to change that fundamental protection. The 14th Amendment can’t be changed by the passage of a mere federal law.

Unfortunately, it does not appear that Kavanaugh agrees with this fundamental aspect of how the US Constitution can be changed. His partial dissent states that he thinks that Trump’s EO is a no go because federal law (replication of the language of the 14th Amendment) is controlling. He doesn’t think the majority should have decided the constitutional question of whether the EO conflicts with the 14th Amendment because he thinks that is more complicated, so he didn’t sign on to the majority’s sections on constitutionality.

-Pg. 12, the majority correctly understands that the exceptions to the coverage of birthright are narrow and limited and they were exceptions that were familiar and agreed to by the ratifying generation in the late 19th century. These are also exceptions familiar under the common law governing birthright citizenship dating back to early England. These 3 are: children born to foreign diplomats, children of invading armies, and Native American children born in tribal nations.

There were indeed unauthorized migrants at the time of the 14th Amendment’s ratification as I detail in my book. Colonies, then states virtually exclusively managed international and interstate borders until 1888. There was a gauntlet of state laws that people could run afoul of. US immigration controls do not transition fully to the federal level until 1888, a process that begins in 1875. At the time of the 14th Amendments’ ratification, state migration laws were still controlling.

Moreover, Congress by legislation shuts down the international slave trade in 1808. After that, there were still vessels carrying captives into the US, in contravention of federal law. No one debating the birthright citizenship clause believe that the children born to these smuggled enslaved people wouldn’t be US citizens.

If the 14th Amendment framers wanted to exclude the babies of temporary visitors (people not domiciled), children of unauthorized migration, or people who “owed allegiance” to another country as the dissenters assert, they would have said so. They didn’t.

-Pgs 14-16 are the majority’s discussion of US v Wong Kim Ark (1897), the controlling precedent in this instance. This SCOTUS case resulted from a legal challenge brought by a Chinese American man, Wong Kim Ark, who was born in California. His Chinese immigrant parents were authorized to be in the US but racially barred from naturalization until 1952, and really 1965.

The majority nails down that Wong Kim Ark is still controlling precedent that held that “the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States.” Pg 16 Roberts notes that Wong Kim Ark has been repeatedly reaffirmed by the federal courts over 128 years. It was that landmark constitutional law case that Trump wants to overturn by fiat with his EO. The majority admonishes on pg. 24 “For the dissents and the Government, Wong Kim Ark is essentially irrelevant.”

-The government and dissenters, seizing on the exception under federal Indian law exempting Native American children from US citizenship until 1924, try to make a big deal about the concept of parents’ “allegiance" and allege it is essential to bestowing birthright citizenship. On pg. 17, the majority mocks the government and Thomas for asserting that the US’s conception of “allegiance” “at some unspecified point in time—broke from Great Britain’s” when "natural allegiance, they contend, was no longer sufficient for citizenship and some greater quantum of allegiance was required.”

The dissenters accuse the majority multiple times of acting as if there is one unbroken line of common law cases from feudal England to the present. But the dissenters and the government miss when and what the break is. US citizenship history in itself is long and complicated. Even under early English common law, the status of subject changes from a category where one owes allegiance to the monarch and the king in turn provides protection, to one in which the subject becomes a rights-bearing category.

The definitive treatment of US citizenship history says that the innovation of American citizenship is that whereas the common law understanding of formal citizenship was one of a legal status that was perpetual and immutable, (once a citizen, always a citizen), Americans re-defined citizenship as based on volition. In other words, Americans said that one can leave an old citizenship and nationality, and choose a new one—you’re not stuck with a status you are born into and can never leave.

“Allegiance” is a strange thing to peg birthright citizenship to in light of the legacy of slavery in the US. During oral arguments, Justice Jackson challenged Solicitor General Sauers asking him, I’m paraphrasing based on my memory, “Are you asserting that enslaved people had ‘allegiance’ to the US government? Didn’t they not want to be here since they were forcibly carried to America?”

-Pg 25 the majority rightly notes that the historical record doesn’t include any discussion of “domicile” as a prerequisite for birthright citizenship. Migration and the Origins of American Citizenship is the history of the arc of time, from the colonial period to 1888 when international and interstate migration was locally controlled. I found no mention in any laws on “domicile” with regard to bestowing citizenship. But, that there was an absence of federal migration laws didn’t mean open international or internal borders.

Northeastern states had laws discouraging the landing of poor, sick, and disabled people. 8 coastal slave states had Negro Seaman Acts preventing international and domestic free Black sailors from getting off their ships for the duration of the vessel’s stay or the sailors risked arrest, imprisonment, and being sold into slavery. Upper south border states had laws restricting the settlement of free Black people. Poor people of every nationality couldn’t go wherever they wanted even to search for work or join supportive communities and families. Native Americans lost their right to their domicile on their ancestral lands when the US government violently deported 80,000 Indigenous people to make way for white families, the expansion of cotton growth, and slavery.

Not only was the right of domicile not a thing for broad swaths of people, the right of international and interstate mobility was not either.

Concurrence by Justice Jackson, joined by Sotomayor

Justice Jackson wrote separately, citing the academic literature by actual historians, she underscores that the birthright citizenship was intended to apply broadly. Quoting Eric Foner, she writes on pg. 2 of her opinion that the 14th Amendment language “changed and broadened the meaning of citizenship for all Americans.”

-Jackson’s concurrence adds historical detail and reminds us that African Americans themselves repeatedly advocated for their human dignity, belonging, and formal citizenship, since the founding. She did so probably to dispel the notion that birthright citizenship was bestowed by white men because of noblesse oblige.

-On pg. 19, she calls out the Government and dissenters for not only departing from the plain meaning of the 14th Amendment’s text, “but also from the historical record as interpreted by the keepers of the ‘call to remembrance’ (trained historians).”

-She hammers home the point on pg. 20 that the scope and intent of the birthright citizenship clause embodied a “universalist vision” of belonging that “stands firmly against caste and subjugation—on all axes, and on all manners.”

Kavanaugh concurring in the judgement, and dissenting in part

Kavanaugh believes Trump’s EO contradicts a federal immigration law drawing upon the language of the 14th Amendment. He only voted for that and dissented on the constitutional question of whether the EO contradicts the 14th Amendment. According to his (erroneous in my view) reading, he believes Congress could enact more restrictions on birthright citizenship and still be consistent with the 14th Amendment—but it hasn’t done so…yet. He is inviting the Congress to pass a new law adding categories of people that would be exempt from birthright citizenship and wrongly believes the Constitution can be changed by the mere passage of a new federal law.

The reason the Reconstruction Congress didn’t stop at protecting birthright citizenship via the Civil Rights Act of 1866, where it was first mentioned, was because they wanted to place it beyond the reach of partisan politics and to force any changes to go through the Article V constitutional amendment process.

-Along the way Kavanaugh makes historical errors. He asserts on pg. 8 “significant illegal immigration to the United States is a new circumstance that was largely unknown as of 1868” so the framers “could not have fully anticipated” it. Even if you put aside the crazy quilt of state-level migration restriction laws and only focus on federal migration laws, in fact the 14th Amendment framers knew about unauthorized migration as it did exist at the time in the form of undocumented enslaved people smuggled in after 1808.

-On pg. 9, footnote 6, Kavanaugh holds up the instance of Native Americans falling outside of the birthright citizenship guarantee as a gotcha to the majority. He writes, “plaintiffs cannot convincingly explain their view that the children of tribal American Indians are not constitutionally entitled to birthright citizenship while the children of foreign citizens unlawfully or temporarily in the country are…” (Holding up the exception of Native Americans as proof of a group that doesn’t automatically get birthright citizenship because they are not “subject to the jurisdiction” of the US is a strategy other dissents also raise. See also Thomas’ dissent pg. 63.)

The problem is the precedent is from federal Indian law. Native Americans have a unique relationship to the land and to the US polity because of their status as the first occupants and owners of the land that is now US territory. They are not on the same legal or historical footing as settler voluntary and involuntary migrants. The 14th Amendment framers omitted Native people from birthright citizenship to recognize tribal sovereignty and Native people’s membership in their own Native nations.

What should be dispositive on the use of federal Indian law and Native history is the judgement of federal Indian law scholars, and two of the most prominent wrote about birthright in their amicus brief. Berger and Ablavsky note that Native American’s citizenship shouldn’t be used as precedent to deny birthright citizenship to undocumented people’s children. They write on pg. 2 of their amicus, “As a result, Indians’ unique status and complex history defy extrapolation to this case. Petitioners and their amici nonetheless attempt to shoehorn Indians into their argument notwithstanding tribes’ distinctiveness.”

Thomas’ dissent that Gorsuch joined

Thomas’ dissent is by far the longest, at 90 pages. It laboriously and ahistorically asserts that the 14th Amendment framers meant to say that only the children of parents legally “domiciled” in the US were covered. On pg. 4, he derides the majority’s reliance on common law and precedent as “feudal” and backwards. Page after page is argumentative claims of how “domicile” was essential to the definition of citizenship.

-Pg. 5 argues a historical falsehood that the 14th Amendment was designed only to “secure the rights of freed blacks but has been repurposed for political projects the Reconstruction Congress did not support.” There are mountains of research done by actual historians that the dissent simply ignores. The framers knew other groups besides African Americans would be covered.

-Pg. 6 Thomas put out a howler, writing “In America, generally you were a citizen if you were born here and this was your home.” In so doing, Thomas equates place of birth with domicile. He doubles down on the point on pg. 10 “birthplace was often a heuristic of domicile.”

His claims flies in the face of a growing early republic and 19th century citizenship history where free Black citizenship was under-defined, leaving them open to all sorts of discrimination by state laws. Free Black Americans didn’t have formal citizenship until the birthright citizenship clause. That history of citizenship is in covered in my book and the reams of scholarship on the topic. Some northeastern states claimed free Black men as state citizens, other states didn’t, and no one was sure whether free African Americans were US citizens.

At a time when phalanxes of state laws prevented free and enslaved Black Americans from merely going into some states or staying there, “domicile” would have been politically explosive to define. No wonder the framers of the 14th Amendment didn’t peg birthright to domicile.

-Pg. 52 Thomas raises the specter of the modern day issue of birth tourism claiming “large numbers” of children are born here because of foreign women coming here just to give birth. As immigration lawyer Margaret Stock has pointed out, birth tourism can be stopped via the consular interview process and visa denials to pregnant women instead of blowing up the Constitution and creating a permanent stateless caste of millions of children.

-Pg. 52 Thomas cites the “growndswell of new scholarship into the original meaning of the Citizenship Clause.” This new “scholarship” he cites is all produced in 2026 by a handful of law professors who don’t have a track record of studying the subject. There are unfortunately professional incentives to produce such scholarship regardless of its accuracy and quality.

That new “scholarship” has been debunked by other law professors. What may not come across to non-lawyers is that the group Thomas cites are a very small and vocal minority in the legal academy where even originalist scholars agree with the majority opinion’s reading.

Thomas in citing his alleged “groundswell” ignores the many other articles and books on early republic and antebellum citizenship by legal scholars who have studied the issue at length, including a relatively recent book on the history of Wong Kim Ark and on citizenship stripping. This is what Jonathan Gienapp warned against, the cherry picking of historical data to select only historical evidence that bolsters your preferred legal result.

-On pg. 60, Thomas goes textualist zero-ing in on the words “subject to the jurisdiction” in the 14th Amendment. Notably, he assiduously avoids the words “All persons born or naturalized” in the same amendment. (Alito does the same on pg 11 of his dissent.)

-Pg. 69 leaving no stone unturned, Thomas cites a plethora of post-ratification scholarship and sources to undermine birthright citizenship. Why even go there? He as a self-described textualist and originalist ignores the voluminous evidence from the 14th Amendment framers’ intent and the original public meaning raised in the majority and Jackson’s concurrence?

Alito’s dissent

Alito’s dissent focuses on what Jonathan Gienapp calls the “writtenness” of the Constitution and laws, the idea that we can discover how laws operated in the past by looking for said written statutes on the subject. But as many legal historians have argued, common law understandings were not always written down. Just because there were no laws on domestic violence and abortion doesn’t mean there were no community based systems of handling these phenomenon.

-Pg. 10 Alito drops an ahistorical howler of his own in claiming “In the years before the Civil War—and indeed, many years thereafter, the distinction of citizens and aliens meant less than it does today. During that period, immigration was unrestricted, so aliens could come and stay as long as they wanted.” Nope. Gerry Neuman’s classic article and follow up book was the first article debunking that claim. Neuman’s work has spawned a full grown subfield of early republic and antebellum migration history documenting the many state-level laws regulating international and interstate migration.

-Pg. 28 Alito writes “For decades after that decision [Wong Kim Ark] immigration remained largely unregulated.” The feds took over immigration enforcement beginning in 1875. They passed the Chinese Exclusion Act in 1882, the first federal law banning a named group by race and class. There was definitely federal immigration enforcement by Wong Kim Ark.

Still on pg. 28 Alito says the start of “illegal immigration” becoming a “notable problem” is in the 1970s and on pg. 29, blaming the Immigration Act of 1965. Welp, if you only count federal immigration laws, maybe. But there was more than a century of colonial and state migration laws. We can argue about whether historically officials had the administrative capacity to enforce borders but that’s a different discussion than asserting there were no laws. There were. Just not federal. There were unauthorized people breaking state-migration laws.

Gorsuch dissenting

Most professional SCOTUS watchers didn’t predict Gorsuch’s dissent. I too didn’t expect it. His short dissent doesn’t add much except to focus on people who have “made the US their home” which he says explains whether they are “domiciled” to gain birthright citizenship. But how do we measure intent and how long must one “make the US their home”? Do foreign students who have been here studying for advanced degrees qualify? Long-time undocumented people like DREAMERS?

Summation

This is not an exhaustive list of errors in the decision. I have to get back to my own work. US migration and citizenship history is far more complex than the narrow legal question in Trump v Barbara, yet many Americans, including lawyers, don’t know the history. I don’t travel in fancy circles that include federal judges. But I hope that readers will consult Migration and the Origins of American Citizenship and the many works by other scholars I cite in it. If I can’t persuade the SCOTUS, perhaps I can convince ordinary Americans and residents who have to guard our fragile republic and who can also define the meaning of the US Constitution.