Unsettling Settled Law

[Offthemat]

The 2025-26 Supreme Court term ended with the Court divided on another question of citizenship.  That matches, I think, the sentiment of the voting populace in that there is a substantial disagreement among voting citizens as to whom citizenship should be granted based on the circumstances of their birth.  For now, one group can say that it is settled law that anyone born on U.S. soil, other than those whose parents are visiting diplomats, is automatically a citizen.  But in the Spring of 1857 there was another group who were claiming that there was settled law in regards to citizenship.  It too was ‘settled’ by a Supreme Court decision that was less divided by the Court, but similarly divided by the voting populace.  It too was thought by some to be the final answer to allay the tension in the country.  Instead it is now regarded as a primary incendiary in the progression towards the Civil War and the worst decision ever handed down by the Court.  Could this latest decision, coupled and compounded by other contemporary issues, such as communists taking over the dimocrax party, the fraud, welfare, and crime associated with both legal and illegal immigration, and Chinese birth tourism prove to be similarly destructive?  
 

Some rumblings:

The kind of thought that should be on the bench:

OPINION

 

1776, not 1608: What the Supreme Court got wrong on birthright citizenship

JOHN C. EASTMAN

JUNE 30, 2026

 

 

 

The court's majority opinion is based on an incorrect notion of political allegiance. 

 

Chief Justice John Roberts begins the Supreme Court’s birthright citizenship opinion in Westminster in 1608 with Calvin’s Case and the English law of royal subjectship.

I would begin in Philadelphia in 1776.

English law rested upon allegiance to the Crown. The American Republic would rest upon the consent of a self-governing people.

Between those two places — and those two moments — lies the American Revolution. And the Revolution changed more than who governed America. It changed the very foundation of political membership.

That is the central problem with the Supreme Court’s decision in Trump v. Barbara. The court’s opinion is learned, careful, and historically rich. Chief Justice Roberts traces the English doctrine of jus soli through Calvin’s Case, Blackstone, a substantial body of antebellum American authorities, and finally United States v. Wong Kim Ark. 

 

It may well become the definitive defense of the conventional understanding of the 14th Amendment’s Citizenship Clause. But it answers the wrong question.

 

The issue is not whether America inherited English legal language. It plainly did. The issue is whether America also inherited England’s understanding of political membership.

The majority assumes that the American Revolution left the English understanding of political membership largely intact. The dissents argue that the Revolution rejected that understanding and replaced it with an American conception of citizenship grounded in the consent of the governed. That is the real disagreement in this case.

 

The rest is at: https://www.theblaze.com/columns/opinion/the-supreme-court-came-to-the-wrong-conclusion-on-the-14th-amendment

[fishbane]

You have an amazing track record on this topic lol.

[Offthemat]

9 hours ago, fishbane said:

You have an amazing track record on this topic lol.

Track record?  I see this as a supremely important issue.  If you have an opinion on it, I’d be happy to hear it.  What I don’t care about is others opinions of me. 

[fishbane]

3 hours ago, Offthemat said:

Track record?

A year ago you were confident the court was going to rule the opposite that it ultimately did.  Now you are predicting Trump vs Barbara to be Dred Scott 2.0.  It should not be surprising if you end up being wrong on this given how confidently you were wrong on this topic in the past.  You are not prescient on this topic.

[Offthemat]

2 hours ago, fishbane said:

A year ago you were confident the court was going to rule the opposite that it ultimately did.  Now you are predicting Trump vs Barbara to be Dred Scott 2.0.  It should not be surprising if you end up being wrong on this given how confidently you were wrong on this topic in the past.  You are not prescient on this topic.

I had more confidence in this Court than it deserved.  I’ve grown accustomed to Roberts’ specious work, but Kavanaugh and Barrett really failed at reading the room on this one.  Though Kavanaugh’s finding that the EO wasn’t unconstitutional, only statutorily contravening, would have made the work at hand a little easier, at least he recognized that “subject to the jurisdiction thereof” has more substance than the Roberts’ faction allowed. 
 

Do you have any explanation for why China would be interested in having millions of U.S. citizens living in their country?

[Bigbrog]

I'm a little torn with the courts decision on birthright...part of me is okay with it just as I am with the 2nd amendment in that they were written for a different time and different situations; however, still hold true to today in concept.  On the other side of it where I sorta disagree in that we have passed rules/laws/regulations for the 2nd in regards to certain type of weapons and guns and there probably should be rules/laws/policies around birthright citizenship in that if you are here illegally it doesn't mean your baby born here is automatically a citizen. 

[Offthemat]

From Clarence Thomas’ dissent:

The Fourteenth Amendment was enacted in the wake of

the Civil War, “with the one pervading purpose” of securing

equal citizenship for the freed slaves. Slaughter-House

Cases, 16 Wall., at 71. It was enacted, as Justice Harlan

wrote, “to secure to a race recently emancipated” the “civil

rights” that other citizens enjoyed. Plessy, 163 U. S., at

555–556.

This Court has time and again denied Americans that

promise. Shortly after the Amendment was ratified, this

Court deprived black citizens of the right to peaceably as-

semble and to keep and bear arms. See United States v.

Cruikshank, 92 U. S. 542 (1876); see McDonald, 561 U. S.,

at 808–809 (THOMAS, J., concurring in part and concurring

in judgment). A little later, in Plessy, the Court upheld the

subjugation of black citizens in the form of state-coerced ra-

cial segregation. 163 U. S. 537. When it had an opportunity

to correct that profound error, it did so narrowly. See

Brown v. Bd. of Ed., 347 U. S. 483, 494, and n. 11 (1954). It

then used that very decision to justify busing American

children to different schools based on their race. See Swann

v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 (1971).

 

And, until recently, this Court continued to selectively en-

force our colorblind Constitution, including by allowing

state-coerced racial discrimination in public education, e.g.,

Grutter v. Bollinger, 539 U. S. 306 (2003), and compelling

States to draw political districts on the basis of race, e.g.,

Allen v. Milligan, 599 U. S. 1 (2023).

Meanwhile, the Court has repurposed the Fourteenth

Amendment to protect its own set of preferred rights that

the Reconstruction Congress never contemplated and that

cannot find support in its text. Today, the Court does so

again by recognizing a constitutional right to citizenship for

the children of all foreign birth tourists and illegal aliens.

VII

I am not sure that today’s opinion will stand the test of

time. The Citizenship Clause “added greatly to the dignity

and glory of American citizenship.” Plessy, 163 U. S., at 555

(Harlan, J., dissenting). Today’s opinion devalues that cit-

izenship. I respectfully dissent.

[Offthemat]

From Alito:

As shown in Part II, supra, a person who is born in the

United States is made a citizen by the Fourteenth Amend-

ment only if that person was also “subject to the jurisdic-

tion” of the United States. And that phrase means subject

to the jurisdiction of the United States alone and not “sub-

ject to any foreign power.”
 

A great many persons who are born here to illegal immi-

grant parents fail this test because at birth they are auto-

matically made nationals of their parents’ native country

and, as a result, incur duties to that country. This means

that they are “subject to a foreign power” and are thus not

“subject to the jurisdiction” of the United States within the

meaning of the Fourteenth Amendment.

This is illustrated by the laws of countries on the list of

those from which the greatest number of illegal immigrants

come.14 Mexico is at the top of that list, and under Mexico’s

constitution, the child of a Mexican parent can become a

Mexican national at birth and acquires certain duties to the

government. See Political Constitution of the United Mex-

ican States, Arts. 30, 31 (1917). Among these are the obli-

gation to receive military training and to join the National

Guard. Art. 31.

Guatemala is second on the list, and its constitution also

confers Guatemalan nationality on a person born abroad to

a Guatemalan parent. Political Constitution of the Repub-

lic of Guatemala, Art. 144 (1993). All Guatemalan nation-

als owe certain duties to the government. Art. 135. At the

age of 18, a Guatemalan national automatically becomes a

Guatemalan citizen, Art. 147, and thereby acquires addi-

tional obligations, Art. 136.

El Salvador is also among the top five, and its constitu-

tion provides that “[c]hildren of a Salvadoran father or

mother, born in a foreign country,” are Salvadorans by

birth. Constitution of El Salvador, Art. 90 (2014). Upon

reaching the age of 18, these children incur an obligation to

serve in the military, Art. 215, as well as other duties, in-

cluding the duty “[t]o serve the State in conformity with the

law.” Art. 73. Many other countries among the top 10 have

similar laws. See, e.g., Constitution of Honduras, Arts. 23,

40 (2013); Constitution of the Philippines, Art. II, §4;

Art. IV, §1 (1987); Nationality Law of the People’s Republic

of China, Art. 5 (1980).

Respondents’ claim in this case is that Executive Order

No. 14160 is unconstitutional on its face. To prevail on this

facial claim, they must show that “no set of circumstances

exists under which the [Executive Order] would be valid.”

United States v. Salerno, 481 U. S. 739, 745 (1987). And

because the order is valid as applied to nationals from the

countries discussed above, the claim should fail. In all like-

lihood, the Executive Order is also constitutional as applied

to nationals from a great many other countries, but no such

showing is needed here.

Indeed, showing merely that the Executive Order is valid

as applied to a child born to a birth tourist would be enough

to defeat respondents’ facial claim. That is why the Court

goes out of its way to hold that even a child born to a mother

who is here for only a brief time is a citizen under the Four-

teenth Amendment. Ante, at 3–4, 19–20.

The Court’s interpretation is not only contrary to the orig-

inal meaning of the Fourteenth Amendment, it produces

grotesque results. While foreigners who wish to immigrate

lawfully must sometimes wait for many years, a child born

here to a birth tourist is automatically a citizen.

The Court’s interpretation also has national-security im-

plications. Accord, ante, at 56 (THOMAS, J., dissenting).

Suppose that a person’s only connection to this country is

that he was born here to a mother who was present just

long enough to give birth and then quickly returned to her

native country. Suppose that country is a strategic adver-

sary or enemy of the United States. Suppose the child never

visited the United States while growing up and was

inculcated with hatred of this country. According to the

Court, that person is a citizen of the United States. He can

enter and leave the country as he pleases. He can travel

the world on a United States passport. Even if he plots to

harm this country, he cannot be deprived of his status as a

citizen, at least under current precedent. See Vance v. Ter-

razas, 444 U. S. 252, 259–260 (1980).

The Court’s interpretation saddles this country with an

ancient British rule that even the United Kingdom has

abandoned,15 as have other countries whose legal systems

share the same pedigree.16

The Court’s interpretation preserves a powerful incentive

to enter or remain in this country illegally. Immigrants

naturally prefer affluent countries where economic oppor-

tunities are available. Other than Canada, the United

States will be the only affluent nation where birth alone is

enough to establish citizenship.17

If the Fourteenth Amendment required these results, the

country would have to live with them or amend the Consti-

tution. But the Fourteenth Amendment does not include

the rule the Court now imposes on the country. In my judg-

ment, the Court has made a mistake that will seriously af-

fect the country’s future.

For that reason, I respectfully dissent