Trump v Barbara (2026): Birthright Citizenship and the Unnecessary Trial of a Settled American Principle
For over a century, the rule that a child born on American soil is an American citizen was not a live constitutional question. Yet, in 2025, a single executive order was enough to drag that settled principle before the courts, forcing three federal district judges to enjoin it, and require the Supreme Court to reassemble an argument that had already been won multiple times in that very court.
This essay argues that the Fourteenth Amendment’s Citizenship Clause has always guaranteed birthright citizenship to virtually all children born within the United States; that the men who wrote it did not stumble into that breadth by accident but rather chose it, repeatedly and self-consciously; and that while Trump v. Barbara (2026) reached the only defensible outcome, the fact that four sitting Justices could be persuaded otherwise should unsettle anyone who assumed the matter closed. To display these points, a historical analysis must take place to prove the embeddedness of the principle in American history. Moreover, one must scrutinise the arguments of those who oppose birthright citizenship to reveal their weaknesses.
A Historical Analysis: From Dred Scott to the Fourteenth Amendment
Historical analysis is important for American birthright citizenship because it proves that its principle has always, in one way or another, been a part of American society. An honest account must begin with the wound the Fourteenth Amendment was written to close. In Dred Scott v. Sandford (1857), Chief Justice Taney held that no person descended from slaves — free or enslaved — could ever be a citizen of the United States, whatever his or her place of birth. Taney did not rely on established legal precedent to justify his views but rather invoked the political context surrounding the creation of the Constitution — specifically that the United States is a descendant of the slaveholding English race — to construct a legal framework that legitimised white supremacy. Taney anchored his argument in a historical justification of white supremacy, drawing upon its widespread use across European empires. In his opinion of the court, he explained how “[people of African descent] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. Taney relied not on a legal precedent, but rather the historical precedent of white supremacy to show how citizenship should only be extended to white people.
The Dred Scott decision was received across the US not as a plausible reading of the Constitution, but rather as a gross misreading of American principles. In responding directly to Justice Taney’s opinion of the court, activist Frederick Douglass said: “As a man, an American, a citizen, a colored man of both Anglo-Saxon and African descent, I denounce this representation as a most scandalous and devilish perversion of the Constitution, and a brazen mistatement [sic] of the facts of history”. Contemporaries viewed citizenship as a historical American right which transcended race and were deeply offended by the Court’s decision in Dred Scott v Sandford. Importantly, Douglass emphasises his status as a citizen, reflecting the widespread view that citizenship is a fundamental American right and a marker of national identity. This is the crucial point that is often overlooked when the Citizenship Clause of the Fourteenth Amendment is treated as merely a narrow, technical fix for the legal status of formerly enslaved people. The men who drafted the Fourteenth Amendment saw themselves as restoring the common law principle of jus soli, or the right of the soil, while protecting the rights of non-white peoples underneath it. The framers wanted to enshrine this principle within the Constitution to protect these rights from the reach of any future Court or Congress tempted to undermine it again.
Who Exactly Has Control Over the Amendment?
An often-cited critique of the modern reading of the Fourteenth Amendment is that Congress has broad discretion to interpret and enforce it, meaning that the continuing debate over the Amendment is fundamentally a matter of policy. One of the most influential versions of this argument comes from Peter Schuck and Roger Smith, two legal scholars whose 1985 book Citizenship Without Consent remains the intellectual backbone of the modern case against birthright citizenship. Rather than reading the Citizenship Clause as self-executing, they argue that it hands the matter to Congress: “Under the best reading of the Citizenship Clause of the 14th Amendment, the citizenship status of the American-born children of illegal immigrants is not mandated by the Constitution. Rather, this clause empowers Congress to decide the matter in its policy discretion.
Schuck and Smith essentially shift the constitutional debate to a policy debate, pushing for legislative change today. Their claim that the Citizenship Clause “empowers Congress to decide the matter in its policy discretion” leans on Section 5 of the Amendment, which states that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article”. However, this is enabling language, not delegating language – it authorises Congress to pass laws to ensure its enforcement, not to redefine what the amendment means in the first place. If enforcement language were a license to change constitutional rights, then the same logic must apply to the Thirteenth Amendment, which closes with almost identical language: “Congress shall have power to enforce this article by appropriate legislation”. Of course, no serious scholar argues that this sentence allows Congress to decide again on the permissibility of slavery. Rather, this clause was merely understood as a grant to implement legislative change without hindrance.
The drafters of the Fourteenth Amendment borrowed this phrase from the Thirteenth as it had already been successfully used to assist in the implementation of the amendment. The Thirteenth and Fourteenth Amendments were enacted within three years of each other – a length less than a presidential or senatorial term. It is unsurprising, then, that the language of both amendments is similar and should thus be interpreted in the same way. Therefore, one cannot follow the congressional authority argument to oppose birthright citizenship.
“Birth Tourism”: Could the Drafters Have Foreseen It?
Restrictionists often argue that the phrase “subject to the jurisdiction therefore” excludes the children of unauthorised children. In fact, this group of children is often the one most attacked in current debates surrounding American birthright citizenship. While scrutiny of the Fourteenth Amendment has been seen throughout the decades following its enactment, the term “birth tourism” has only entered American vernacular within the last two decades. Notably, American politicians such as Lindsay Graham and Donald Trump have publicly pushed for changing the Fourteenth Amendment in response to growing concerns over this so-called “birth tourism”. Speaking on Fox News back in 2010, Graham went as far as to describe “groups that are marketing to Chinese and Middle Eastern and European families a 90-day visa package where you come to America as a tourist, you come to a resort, you have your child at a hospital within the resort. That child is an American citizen; you turn around and leave”.
However, this point collapses when examined next to current birth statistics and the actual floor debate from when the amendment was passed. The Center for Disease Control and Prevention recorded approximately 9,500 births to mothers of foreign address in the year 2023. By comparison, that same year saw roughly 3.6 million births to registered American residents. Few, if any, historical invasions have been carried out by populations which represent merely 0.02% of the whole. This disparity suggests that invocations of “birth tourism” as ground for opposing birthright citizenship either reflect a fundamental misunderstanding of the phenomenon’s scale or are grounded in xenophobic sentiment rather than empirical concern. Moreover, this rhetoric falters when examined against the actual floor debates during the passage of the Fourteenth Amendment. Senator Jacob Howard, who introduced the Citizenship Clause in the Senate on May 30, 1866, described the clause as “simply declaratory of what I regard as the law of the land already”. This echoes Frederick Douglass’s rhetoric following the Dred Scott decision, which framed American citizenship as a cornerstone of national identity. The introducers intentionally used broad language because they viewed the amendment as a broad right. The claim that framers could not have foreseen an abuse of the system by “undesirables” is false. In a back and forth between Senator Edgar Cowan and Senator John Conness, Cowan attempted to use xenophobic narratives of an immigrant invasion to persuade the floor to vote against the citizenship clause. Senator Cowan claimed that if California “was likely to be invaded by a flood of Australians or people from Borneo, man-eaters or cannibals if you please, she would have the right to say that those people should not come here”. He continued by employing further bigoted language towards immigrants and expressing his concerns about the expansion of citizenship. However, Senator John Conness of California, the state that Cowan attempted to use as an example, responded by saying; “I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States”. Those who were viewed as the most vulnerable to a potential abuse of the Fourteenth Amendment still allowed it to be passed. Consequently, claims that the amendment’s framers lacked foresight of an influx of abusive behaviour are unpersuasive.
“Birth Tourism”: A New Phenomenon?
Perhaps as old as the United States is American racism and xenophobia. In the one hundred and fifty odd years since the passage of the Fourteenth, there have always been political movements against it. Whether manifested in fears of papal influence over Catholic immigrants or in the internment of Japanese Americans during the Second World War, xenophobic anxieties have repeatedly shaped American political discourse, with questions of citizenship often at the centre. Many current debates present the issue as a modern phenomenon. However, this cannot be further from the truth. If the Fourteenth Amendment supplied the promise of birthright citizenship, then United States v Wong Kim Ark (1898) supplied the proof. This case centred around the citizenship status of a child born in the United States to Chinese parents. In this case, the Supreme Court held that “a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China . . . becomes at the time of his birth a citizen of the United States”. It is relevant that the Court chose to highlight that Wong Kim Ark’s parents were “subjects of the Emperor of China” because it proves that there is a separation between the jurisdiction of the child and the jurisdiction of the parent. As previously discussed, the line “subject to the jurisdiction” has been central to a lot of revisionist’s arguments. However, in many ways, Wong Kim Ark proves that a child’s birthright citizenship status is just that: the child’s. Chief Justice Fuller relied on similar points made today in his dissent opinion. He focussed his argument on national allegiance and claimed that the creators of the amendment never wanted it to be used as such.
Yet there is a reason that these arguments appear in the dissent rather than the majority: the court ultimately rejected, and continues to reject, this opinion. Wok Kim Ark is only one example of a history of maintaining the Fourteenth Amendment in its form. Over the next century, nationalistic movements against foreigners plagued American politics. Examples of this were movements against Asian, Eastern European, or Latinx peoples. Unfortunately, xenophobia has been a relative constant in American history. It is precisely for this reason that the Fourteenth Amendment was written in such broad and universal terms: to guarantee citizenship irrespective of the particular prejudices that future generations may have.
What Now?
In reading all of this, the majority opinion in Trump v Barbara is difficult to dispute. As Chief Justice Roberts noted in his majority opinion, “There is scant evidence for this dramatically revisionist view” when it comes to birthright citizenship.13 Roberts contends that birthright citizenship is a longstanding constitutional guarantee and that neither historical practice nor judicial precedent supports a narrower interpretation. Jus soli goes hand-in-hand with perhaps the most core American value: that anyone, from any means and from anywhere, can become an American citizen and make a better life for themself. To quote the poem “The New Colossus” which is famously displayed on the Statue of Liberty, the metaphorical symbol of American immigration: “Give me your tired, your poor, / Your huddled masses yearning to breathe free, / The wretched refuse of your teeming shore. / Send these, the homeless, tempest-tost to me, / I lift my lamp beside the golden door”. As the United States was built and continually renewed through immigration, birthright citizenship remains essential to its constitutional and national identity. To abandon that principle would be to depart from a longstanding American tradition. Therefore, the recent SCOTUS decision in Trump v Barbara, for the nth time, aptly reinforces the fact that every child born on American soil is an American citizen.
