The Originalist Case for Birthright Citizenship
A Supreme Court guided by originalist principles should affirm the constitutionality of birthright citizenship.
On his first day in office, President Donald Trump ordered a wholesale change in the federal government's immigration policies. The central symbolic issue was birthright citizenship. In an executive order titled "Protecting the Meaning and Value of American Citizenship," Trump forbade the government from recognizing the citizenship of any child born in the United States to parents who are not American citizens or permanent-resident aliens. The order has thus far attracted three major lawsuits as well as four unfavorable district-court decisions. On May 15, 2025, the Supreme Court will hear oral arguments in these cases.
Trump's executive order was intended to deliver on his campaign promise to reduce illegal immigration and deport millions of immigrants who have entered the country unlawfully. But the truth is that birthright citizenship has little to do with the real problems plaguing our nation's immigration system. The Pew Research Center estimates that, within the 22 million U.S. households that include an unauthorized immigrant, 1.3 million individuals were born to illegal aliens, even as an estimated 3 million illegal aliens crossed the southern border annually during the Biden administration. Our immigration system broke down not because of our nation's practice of granting citizenship to all born within the country's borders, but because the Biden administration refused to secure the southern border and enforce existing law. Ending birthright citizenship would thus do little to slow illegal migration.
Constitutionalism
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Rational Judicial Review: Constitutions as Power-sharing Agreements, Secession, and the Problem of Dred Scott
Judicial review and originalism serve as valuable commitment mechanisms to enforce future compliance with a political bargain.
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Trump’s boat strikes against the cartels risk crossing the line between law enforcement and war.
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The Framers did not expect Congress to preauthorize every use of force or to manage military campaigns.
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Creed, Culture, and American Memory
Even immigrants who shared neither descent nor language nor culture nor religion could find a way to participate in the sense of America, not merely as an idea, but as a home, as a place where they could be “born again.”
The Constitution and the National Guard
This area of the law should be overhauled to better conform to the Constitution.
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