The Supreme Court came to the wrong conclusion on the 14th Amendment

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.

A new creed

Under English common law, nearly everyone born within the king’s dominions became a natural-born subject. Birth within the sovereign’s territory created permanent allegiance to the Crown because the child was born under the king’s protection. That doctrine made sense in a monarchy. It reflected a world of subjects, sovereigns, dominions, and perpetual allegiance.

But the United States is not a monarchy.

The Declaration of Independence did more than announce separation from Great Britain. It rejected the political philosophy upon which English subjectship rested. Jefferson’s words — that governments derive “their just powers from the consent of the governed” — were not mere rhetorical flourishes. They announced a new theory of political legitimacy.

The Declaration’s closing words made the rejection of perpetual allegiance explicit: The new states were “absolved from all allegiance to the British Crown.”

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

That revolutionary transformation should have been central to the Court’s interpretation of the 14th Amendment.

Instead, the majority largely assumes that English subjectship and American citizenship belong to the same constitutional lineage. Roberts proves an important proposition: England recognized birthright subjectship. But he does not prove the decisive one: that Americans who had repudiated monarchy intended, less than a century later, to constitutionalize the English law of royal subjectship as the definition of citizenship in a republic.

Mere obedience to law is not the same thing as complete political allegiance.

Justice Joseph Story helps explain why that distinction matters. Story was steeped in English law, but he was not merely Blackstone with an American accent. His great constitutional project was to explain how inherited English legal concepts had been adapted to the institutions and principles of an American republic.

He stands as a bridge between the common-law inheritance and American constitutionalism.

That is the bridge missing from the majority’s account. Roberts reads the inherited legal tradition largely as a line of continuity from Calvin’s Case to Wong Kim Ark. But the American constitutional genealogy runs along a different path: the Declaration of Independence, Story’s adaptation of inherited law to republican constitutionalism, Lincoln’s reaffirmation of the Declaration as the nation’s first principle, the Civil Rights Act of 1866, and the 14th Amendment.

Abraham Lincoln understood this better than anyone. He did not treat the Declaration as a mere political manifesto. Lincoln treated it as the nation’s statement of principle. In his famous meditation on the Constitution and the Union, Lincoln described the Declaration’s principle of liberty as the “apple of gold,” with the Constitution as the “picture of silver” framed around it.

The frame was made not to conceal or destroy the apple, but to preserve it.

That is precisely the point here. The Constitution must be read as law. But it is American law, not English law. And the 14th Amendment must be read as part of the Constitution’s effort to vindicate the principles of the Declaration after the catastrophe of slavery and Dred Scott.

Preserving the cornerstone

The Reconstruction Congress was not attempting to preserve English constitutionalism. It was completing the work begun in 1776.

The Declaration proclaimed that “all men are created equal.” Dred Scott denied that promise, holding that an entire class of Americans could never become members of the political community. The 14th Amendment repudiated that decision.

But it did so by restoring the principles of the American founding, not by reviving the legal doctrines of the British Crown.

This is why the majority’s repeated description of the Citizenship Clause as “declaratory” does not resolve the question. Declaratory of what? The common law of royal subjectship inherited from England? Or the constitutional law of citizenship that Americans had transformed through the Declaration, the Revolution, and nearly a century of republican self-government?

The 14th Amendment was ratified in 1868, not 1768. It should therefore be interpreted through the constitutional understandings of the American Republic, not simply those of the British Empire.

The Citizenship Clause provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” The clause does not simply require birth in the United States. It adds a second requirement: The person must be “subject to the jurisdiction” of the United States.

Those words must do real work.

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The majority effectively equates “subject to the jurisdiction” with “subject to American law.” Anyone physically present in the country, except diplomats and members of sovereign Indian tribes, must obey American law. From that premise, the majority concludes that virtually everyone born here becomes a citizen.

But the Reconstruction Congress was speaking of something more profound than traffic laws and criminal jurisdiction. It was defining membership in the American political community.

The debates surrounding the Civil Rights Act of 1866 and the 14th Amendment repeatedly invoked the ideas of complete jurisdiction, complete allegiance, and undivided political obligation.

Senator Lyman Trumbull, the principal author of the Civil Rights Act, explained that citizenship extended to those who were subject to the complete jurisdiction of the United States — not merely to those temporarily answerable to its laws.

Every foreign visitor is obliged to obey American law while here. So is every foreign student, every tourist, every diplomat’s driver, and every person who crosses the border unlawfully. But mere obedience to law is not the same thing as complete political allegiance. If it were, the jurisdictional language would add almost nothing to the constitutional text.

The Civil Rights Act of 1866 used slightly different language, extending citizenship to persons born in the United States and “not subject to any foreign power.” The 14th Amendment altered the phrasing, but not the underlying concept of complete political jurisdiction. The point was not mere geography. It was political membership.

That is why the dissents have the stronger originalist argument.

Citizenship in America

Justice Clarence Thomas begins with a question the majority never fully confronts: What did Americans understand citizenship to mean after they had rejected English subjectship? That is the proper originalist inquiry. It is not enough to ask how English courts defined the king’s subjects. The constitutional question is how Americans defined members of a self-governing republic.

The majority’s treatment of United States v. Wong Kim Ark illustrates the same methodological difficulty. Roberts portrays today’s decision as little more than the faithful application of settled precedent. That gives Wong Kim Ark much broader force than it actually possessed.

The case involved a child born in San Francisco to parents who had been lawfully admitted and permanently domiciled in the United States. That holding was sufficient to resolve the controversy before the Court. Whether the Constitution mandates citizenship for children born to temporary visitors or to those unlawfully present was not presented.

To be sure, Justice Horace Gray’s opinion draws heavily on the English tradition of jus soli. But the opinion’s reasoning extended well beyond the facts before it. Its discussion of temporary visitors and the full scope of the Citizenship Clause should be evaluated on the strength of its historical reasoning, not treated as though every observation carried the force of the Court’s holding.

That is especially important because Wong Kim Ark itself looked backward through the English common-law tradition. Today’s Court repeats that move. But whether Justice Gray correctly understood the original meaning of the 14th Amendment remains the very question under debate.

Over the past two decades, Edward Erler, Michael Anton, and I, along with several other prominent legal scholars, have argued that the Citizenship Clause must be understood against the backdrop of the American Revolution rather than the English common law of perpetual allegiance.

That argument does not deny England’s commitment to jus soli. It asks whether the American Revolution rejected the premise on which English jus soli rested.

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Chief Justice Roberts presents an intellectually serious account of the conventional view. The majority opinion deserves respect for its scholarship and for its careful engagement with difficult historical sources.

But scholarship is only as persuasive as the question it seeks to answer.

Roberts proves that England followed jus soli. He proves that English subjects acquired allegiance by birth within the king’s dominions. He proves that Wong Kim Ark embraced that historical tradition.

What he never quite proves is why the American people, after repudiating monarchy and proclaiming government by consent, should be presumed to have constitutionalized that English doctrine rather than adapting inherited legal language to their own revolutionary understanding of citizenship.

The disagreement between the majority and the dissent is therefore not ultimately about Blackstone, Calvin’s Case, or even Wong Kim Ark. It is about what the American Revolution accomplished. Did it merely transfer sovereignty from the king to the people while leaving the English understanding of political membership intact? Or did it reject that understanding and replace it with citizenship grounded in consent, allegiance, and membership in the American political community?

Justice Thomas places that question at the center of the inquiry. For an originalist, that is exactly where it belongs.

The Declaration of Independence eloquently and definitively answered that question in favor of the doctrine of consent rather than the feudal doctrine of jus soli. In this, its 250th anniversary, it should not have been overlooked.