In Trump v. Barbara, the Supreme Court struck down Executive Order 14,160, which sought to clarify that the Fourteenth Amendment’s Citizenship Clause does not automatically confer U.S. citizenship on children born in the United States to parents who are unlawfully present or only temporarily present. The majority held that mere birth on American soil, combined with territorial presence under U.S. laws, satisfies the requirement of being “subject to the jurisdiction thereof.”
This decision represents a profound misreading of the Constitution’s text, its historical context, the Founding principles of consent and self-government, and the limited scope of earlier precedents. Moreover, the Court wrongly constitutionalized a policy of universal territorial birthright citizenship that the Framers of the Fourteenth Amendment never intended and that undermines the very idea of a self-governing political community.
At the heart of the American experiment lies the principle that legitimate government rests on the consent of the governed. The Declaration of Independence announced that governments derive “their just powers from the consent of the governed” and that the American people had absolved themselves of all allegiance to the British Crown, assuming a “separate and equal station” under the laws of nature. Citizenship in this new order was not a feudal status of perpetual subjectship owed to a monarch’s person, as articulated in the 1608 English decision Calvin’s Case. It was an active, consensual membership in a political community dedicated to the natural equality of all human beings and the capacity of mankind for self-government.
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