Birthright Citizenship Ruling

I’ve written about the birthright citizenship case here and here. The first post gathered the long context: English common-law jus soli, the ambiguity around citizenship in the original Constitution, Dred Scott, the Fourteenth Amendment, and Wong Kim Ark. The second post narrowed in on the legal hinge: whether Wong Kim Ark’s actual holding covers only children of permanently domiciled parents, or whether its broader common-law reasoning has become the rule after 127 years of practice.#

Today, June 30, 2026, the final ruling is out: 6-3 on statutory grounds, or 5-4 on constitutional grounds alone. My prediction landed right in the middle: the position Kavanaugh took. The ruling is here. Some reflection.#

The Ruling #

The Holding #

Children born in the United States to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause.#

The Vote #

ROBERTS, C. J., delivered the opinion of the Court, in which SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined. JACKSON, J., filed a concurring opinion, in which SOTOMAYOR, J., joined as to the introduction and Part I.#

The majority further endorsed the prevailing view of birthright citizenship: you are born here, you are a citizen. No law can be passed to narrow it without a constitutional amendment.#

KAVANAUGH, J., filed an opinion concurring in the judgment and dissenting in part. He would have ruled against Trump on statutory grounds ¹, but left the door open for Congress to further change the list of exclusions from birthright citizenship. While that’s a position I predicted, the way he argued about it seems logically inconsistent:#

1. that the exclusion list in the Fourteenth Amendment is amorphous
2. that Wong Kim Ark’s closed-set enumeration is wrong
3. that the Fourteenth Amendment itself doesn’t conflict with Trump’s executive order
4. that the INA (Immigration and Nationality Act), with the same wording as the Fourteenth Amendment, somehow conflicts with Trump’s order

THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined. ALITO, J., and GORSUCH, J., filed dissenting opinions. They view domicile as one critical criterion for citizenship. It’s strange for the “conservative wing” to not defer to Congress on such an important matter. Hello, major question doctrine? But maybe that position is not quite logically consistent either: see the discussion above on the sloppiness they were not willing to sign up for.#

Some Facets and Reflection #

Both sides reached for rhetoric: Roberts referred to Thomas Paine’s description of the new country as an “asylum for mankind,” while Thomas called upon Frederick Douglass for citizens who “fought and bled in the same battles,” “gained and gloried in the same victories,” and were “liable to be called upon to defend in time of war.”#

The majority relied on common-law tradition. They treat citizenship as the fundamental “right to have rights,” and keep the rule simple and unambiguous. I’m an engineer; Occam’s razor ², you know.#

The dissent called common law’s jus soli a feudal relic that the American republic should throw away and replace with a domicile requirement. I’m sympathetic to this argument; who wants to be a feudal subject of a crown, and who doesn’t want to create a new, shining, principled republic? The problem is that history is littered with politicians and lawyers playing word games when you leave holes in this fundamental right (think of Dred Scott).#

On the eve of the United States’ 250th birthday, it is worth remembering that the country was founded on the audacious idea that “all men are created equal” ³: a polity conceived to be bound by that idea, not by culture, language, religion, or blood. It’s fitting that it keeps its door open, maybe even sometimes too widely open. That’s the defining character of America: “Give me your tired, your poor, / Your huddled masses yearning to breathe free.” That’s the fundamental strength of the United States. And Happy Birthday!#