Experts promised that Trump v. Barbara would be a rout against President Trump’s Executive Order “Protecting the Meaning and Value of American Citizenship.” That order excluded from birthright citizenship children of tourists and illegal aliens. At best, the experts said, the President could lose only 7–2. Indeed, one of the first judges to confront President Trump’s Executive Order derided it: “There are other times in world history where we look back and people of goodwill can say, ‘Where were the judges? Where were the lawyers?’”
Yet the placid surface of the Chief Justice’s majority conceals shifting currents below. The effort to recover the Citizenship Clause’s original meaning has opened a new frontier of immigration Originalism—as to the Founding, the Fourteenth Amendment, and the statutes built on both. On a compressed timeline, Originalist scholarship convinced four Justices that the Constitution did not mean what many had assumed. Barbara now poses the next questions. What is the original public meaning of the Citizenship Clause? What children fall within Wong Kim Ark’s exceptions? What room remains to legislate? A majority of Justices identify as Originalists, so it is fair to judge their work against an Originalist scorecard.
The majority’s Originalist analysis fails at every step: text, history, and precedent. This Essay takes up that failure. Part I disaggregates the vote. Part II identifies four errors in the majority opinion. Part III maps the avenues that remain—and assesses which are promising and which are harder than their proponents suppose.
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