Many commentators, myself included, perceived a different headline to the Supreme Court’s rejection in Trump v. Barbara of Trump’s executive order in the birthright citizenship case. The real gobsmacking detail was not the court’s holding, which was broadly signaled in oral arguments, but the fact that four justices—Clarence Thomas, Neil Gorsuch, Samuel Alito, and Brett Kavanaugh—were prepared to uphold a radically counter-textual reading of the plain text of the Fourteenth Amendment to exclude from citizenship children born here to parents who were in the country illegally or only temporarily.
In fact, the dissenting opinions, in particular those of Thomas (joined by Gorsuch) and Kavanaugh, are far loonier and more unorthodox than just their offensive bottom line. The dissenters didn’t simply reach a result aligned with the administration’s wishes; they got there by abandoning the method of interpreting the Constitution that mainstream judges and scholars, conservative and liberal alike, have firmly adopted.
The first sentence of the Fourteenth Amendment prescribes a clean two-part test: Anyone (1) “born … in the United States” and (2) “subject to the jurisdiction thereof” is a citizen. Period, full stop.
It’s not difficult to apply the first part: Trump’s flights of fancy aside, it’s clear what it means to be born here. So any play in the joints has to be in the interpretation of “subject to the jurisdiction thereof.”
The five-person majority opinion written by Chief Justice John Roberts applied the conventional and commonsensical meaning of that phrase. The opinion holds that the clause “uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory.” You are subject to the jurisdiction of the United States if you are bound by the web of obligations and privileges that apply to us all. That’s the same way the court’s 1898 opinion in Wong Kim Ark, which figured heavily in the oral argument and the opinion in Barbara, construed the phrase.
The dissenters’ principal theme is that the “subject to the jurisdiction” clause incorporates, for elaborate historical reasons, a notion of domicile: that the child’s parents were not merely in the country but had set down roots and developed a sense of loyalty to the nation.
The obvious challenge, which I think they don’t come close to surmounting, is how to wrest that reading from the simple words of the first clause of the Fourteenth Amendment.
Thomas, in the principal dissent joined by Gorsuch, begins not with the words of the text but with a history of Dred Scott, Frederick Douglass, and John Bingham, the Ohio Republican congressman who was the principal drafter of the Fourteenth Amendment. He builds methodically toward the claim that the amendment was, in his words, “designed and understood to secure equal rights for the freed blacks.” This theme continues throughout the 90-some pages of the dissenting opinion, which argues that the amendment’s Framers had a narrow purpose in mind: undo the Dred Scott abomination and secure citizenship for the children of the freed slaves.
Interpreting constitutional text based on the intent of the drafters, what was subjectively in their heads, has a name: intent originalism. It also has a provenance: It was once a mainstream method of constitutional interpretation, but it has since been firmly rejected, especially by conservatives. No less an avatar of conservative thought than Justice Antonin Scalia disavowed it, insisting that the inquiry was never the search for “the intent of the Framers” but for the original meaning of the text. He put it bluntly: “It is the law that governs, not the intent of the lawgiver.”
The classic demonstration of why original-intent originalism collapses is the canonical case of Brown v. Board of Education. The plaintiffs in Brown built their argument around the notion that racial segregation in public schools violated the equal protection clause of the Fourteenth Amendment, which states simply that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Yet, the Reconstruction Congress plainly didn’t intend the Fourteenth Amendment to outlaw segregated schools: After all, many of its own drafters ran segregated schools in Washington, D.C. Therefore, if the Framers’ intent governs, and not the words they inscribed into law, Brown looks to have been wrongly decided.
In fairness, that consensus may have been overstated. Judge Michael McConnell and others have shown the Framers’ views on school segregation weren’t as monolithic as assumed. But that revision only reinforces the deeper point: Relying on what was privately in legislators’ minds, rather than the words they put to paper and voted to approve, is an unstable method that can flip an outcome depending on which stray comment you excavate. That’s why original-intent originalism is not merely flawed but effectively moribund; it barely appears anymore in serious Supreme Court jurisprudence.
The reading of the Barbara majority of the “subject to the jurisdiction” language was no different from how the court’s 1898 opinion in Wong Kim Ark read the phrase: An alien present in the country, Justice Horace Gray wrote, “is completely subject to the political jurisdiction of the country in which he resides”—owing obedience to its laws and answerable to them, just as a native-born citizen would be. The court identified a narrow set of exceptions described above in which persons born here, the children of foreign diplomats, would not be subject to our laws in the normal sense.
Domicile appears in the 1898 opinion only as a description of the parties actually before the court; nowhere does Gray treat it as a legal requirement of jurisdiction itself.
There’s much more detail to Thomas’s argument, but it’s in service of the same private-meaning project, notwithstanding his own claim, at one point, that he’s simply applying original meaning. He spends many pages arguing that “subject to the jurisdiction” secretly encoded the nineteenth-century legal concept of domicile—a person’s fixed, permanent home—and that domicile implied something more freighted: exclusive, undivided allegiance to the United States.
That’s shaky on its own terms; domicile has never required renouncing competing loyalties, only living somewhere with intent to stay. But the bigger problem is simpler, and insuperable: The Fourteenth Amendment doesn’t say “domicile.” It says “subject to the jurisdiction thereof”; and, as the majority holds, those words refer, in 1868 or 1898 or 2026, to the “power of the United States to govern those within its territory.”
Whatever you think of the result the dissenters wanted, they didn’t reach it through any interpretive method that survives contact with the last 40 years of debate about how to read the Constitution. They got there by asking what the Framers intended to accomplish, instead of the meaning of what they actually wrote. That’s a method nearly every serious originalist, including the conservative justices who built modern originalism, has definitively rejected.
Finally, a quick word on Justice Kavanaugh’s separate opinion, which in a way is even worse. Kavanaugh concluded that a 1940s statute repeating the Fourteenth Amendment’s exact words already forbids Trump’s order. He then gratuitously went on to say that Wong Kim Ark was wrong to treat its exceptions as a closed, exclusive list, and that Congress could just add a new one for children of unlawful or temporary immigrants. But he never explains—and it’s hard to see how he could—why those children would actually fall outside U.S. jurisdiction.
Kavanaugh’s concurrence permitted Trump to seize a partial victory from what would and should have been a decisive loss. Trump immediately seized on Kavanaugh’s suggestion, insisting Congress could still legislate his own, xenophobic definition of citizenship, notwithstanding that it plainly would contradict the holding in Barbara. Explaining Kavanaugh’s odd separate opinion may call for a discipline other than law.
