Trump Birthright Citizenship View Rests on Originalism, Not Vibes

On April 1, the US Supreme Court will consider whether a clause in a Civil War amendment guarantees citizenship to children born in the US but whose immigrant parents entered or remained in this country without legal permission.

History and common sense say no. Yet Trump v. Barbara will test how seriously the Roberts Court takes originalism when confronted with conventional wisdom and contemporary politics.

The lawfulness of President Donald Trump’s citizenship executive order hinges on one word: jurisdiction. The 14th Amendment’s Citizenship Clause states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

This clause imposes two conditions on birthright citizenship: a person must be born in the US and must be subject to its jurisdiction.

The Supreme Court in 2023 said jurisdiction “is a word of many, too many, meanings.” Consistent with its originalist methodology, the Supreme Court has interpreted constitutional text according to its ordinary meaning at the time the text was ratified. Here this entails discerning which meaning of “jurisdiction” Congress chose when it ratified the 14th Amendment in 1868.

The Constitution’s text, history, and tradition guide this inquiry and all three support the Trump administration’s position.

The plaintiffs argue that jurisdiction means “the authority of government,” which binds all persons within its borders to obey the nation’s laws. Under this view, those born in the US are birthright citizens because they must follow US laws.

Therefore, the plaintiffs contend, immigration status of the child’s parents is irrelevant to birthright citizenship because a child born to immigrants who entered the US illegally is subject to US laws in the same way as a child whose parents are domiciled in the US.

The Trump administration, however, interprets jurisdiction as “political jurisdiction:” a reciprocal relationship in which a person owes “primary allegiance” to and receives “protection” from the government.

Primary allegiance requires domicile, which is established by a person’s physical presence in the country with an intent to remain indefinitely and with lawful status. A newborn inherits the domicile of his parents. Immigrants who entered the US illegally can’t be domiciled in the US because of their unlawful status, nor can their children.

Therefore, the children of immigrants who entered the US illegally aren’t entitled to birthright citizenship because they can’t owe primary allegiance to the US. And without primary allegiance, the US lacks political jurisdiction over them.

The best interpretation of the jurisdiction in question isn’t which interpretation fits the wisdom of today. Instead, it must account for data relevant to originalist judging: textual harmony, the common law’s exclusion of certain groups’ from birthright citizenship, and Supreme Court precedent.

First, jurisdiction must be interpreted as a separate condition from birth to avoid creating a redundancy. In constitutional interpretation, this often is referred to as the rule against superfluity, which says that every word should be given operative effect.

The plaintiffs render the jurisdictional requirement superfluous. All persons born in the US are necessarily under the government’s authority and therefore must obey the law. Then why would Congress say “born ... and subject to the jurisdiction” if the former entailed the latter? The Trump administration avoids this redundancy by assigning jurisdiction distinctive meaning—not all persons born in the US have domiciled parents.

Second, a common law rule known as Calvin’s Case (an English case from 1608) excluded foreign diplomats and invading armies from birthright citizenship. The Supreme Court acknowledged, in 1898, that the 14th Amendment affirmed that “ancient and fundamental rule” in United States v. Wong Kim Ark.

The Trump administration’s theory accounts for the common law’s exclusion of certain groups. These exclusions depend on parental domicile. By contrast, the plaintiffs’ theory offers a patchwork quilt of reasons to explain why these groups were historically excluded.

Plaintiffs’ appeal to “intersovereign comity” for ambassadors and “hostile occupation sever[ing] practical application of the law” for invading armies. Conversely, the Trump administration’s domicile argument serves as a unifying theory with just as much—if not more—explanatory power. None of these children’s parents were domiciled in the US, so none were covered under US political jurisdiction.

Third, the correct interpretation won’t disturb precedent. The Trump administration’s position is consistent with Wong Kim Ark, which held that children of immigrants with “a permanent domicile and residence” in the US are citizens by birth. The plaintiffs overread that case as establishing a near-categorical rule of citizenship by birth. While the 1898 court emphasized that most persons born on US soil are citizens, it didn’t adopt an unqualified rule untethered from parental status, as the plaintiffs attempt.

Instead, it repeatedly stressed that Wong’s parents’ “permanent domicile and residence” in the US was central to its decision. The better reading of Wong Kim Ark is that parental status matters where allegiance is divided or incomplete. On this view, domicile serves as a workable proxy for allegiance—which is consistent with the Trump administration’s position.

Plaintiffs’ interpretation flattens these distinctions, contradicts the common law exclusions, and seeks to extend Wong Kim Ark beyond the limits the Supreme Court itself recognized.

The Supreme Court should be mindful that conventional wisdom isn’t originalism; what we care about is original public meaning—not unfounded later-day vibes. The Trump administration’s interpretation—that “jurisdiction” means “political jurisdiction”—best fits these facts. It avoids superfluity, explains historical exclusions, and fits within precedent.

Because immigrants who entered the US illegally aren’t domiciled in the US, their children aren’t birthright citizens. Trump’s executive order reflects the original meaning of “jurisdiction” in the Citizenship Clause, so the Supreme Court should embrace it.

The case is Trump v. Barbara, U.S., No. 25-365, oral arguments scheduled 4/1/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Robert Luther III is an associate professor of law at the Antonin Scalia Law School at George Mason University and the founder of Constitutional Solutions PLLC, which provides counsel to aspiring judicial candidates.

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