Chief Justice’s Perspective on Birthright Citizenship
Chief Justice John Roberts initiated his Supreme Court opinion on birthright citizenship referencing Westminster in 1608, which ties back to the British Crown Subjects Act. His own professional saga began in Philadelphia back in 1776.
Roberts emphasized that English law rested on loyalty to the monarchy while the American Republic was envisioned to thrive through the consent of its self-governing citizens. The transition between those two historical moments marked the American Revolution, fundamentally altering the very foundations of political membership in the country.
This core issue is pivotal in the Supreme Court’s decision in Trump vs. Barbara. The ruling is detailed and historically detailed, as Roberts leans on British legal doctrine. He references various legal precedents, connecting them to the understanding of citizenship in the Fourteenth Amendment.
While this could serve as a strong defense of traditional citizenship interpretations, it doesn’t tackle the main question. The essential inquiry isn’t about inheriting British legal language, which is clear, but rather whether America has also adopted Britain’s understanding of political membership.
Many believe that the American Revolution didn’t completely shatter British interpretations of citizenship. Detractors argue the revolution actively rejected that notion, creating an American concept of citizenship based on consent. This fundamental disagreement is what this case revolves around.
New Ideology
According to English common law, almost all individuals born within the king’s dominion were considered natural-born subjects. Being born in a sovereign’s territory implied a lifelong loyalty to the king. This doctrine made sense in a monarchy, reflecting the realities of subjects and rulers.
However, the United States operates as a republic, not a monarchy. The Declaration of Independence didn’t merely signify a break from British rule; it contested the underlying political philosophy of British subjects. Jefferson’s assertion that government draws its legitimate powers from the consent of the governed was more than mere rhetoric—it set forth a fresh concept of political legitimacy. The Declaration’s conclusion made evident the country’s break from perpetual allegiance to the British Crown.
Whereas English law anchored itself in loyalty to the king, the foundation of the American Republic rests on the consent of free citizens. Such revolutionary changes should have influenced the Supreme Court’s reading of the Fourteenth Amendment.
Instead, the majority seems to assume a continuity between British subjects and American citizenship along the same constitutional lines. Roberts established a significant point: England recognized birthright subjects, but conclusive proof is still lacking. Less than a century later, a nation that rejected monarchy sought not to enshrine British Crown Law as the definition of citizenship.
Simply adhering to the law doesn’t equate to total political loyalty. The distinction is vital. The story of Judge Joseph exemplifies this very difference. His constitutional endeavors sought to illustrate how British legal principles blended with American republican ideologies.
This connection between common law and American constitutionalism is missing from the majority’s rationale. Roberts predominantly references inherited legal traditions, but the path of the American Constitution diverges significantly, tracing back to the Declaration of Independence, interpretations made during Reconstruction, and Lincoln’s reaffirmation of the Declaration as the nation’s guiding principle.
Lincoln grasped this distinction profoundly. He didn’t just see the Declaration as a political statement; he regarded it as embodying the nation’s principles. In his reflections on the Constitution, he presented the Declaration’s principle of liberty as an “apple of gold” and the Constitution as a “picture of silver,” aimed at safeguarding those ideals.
Thus, the Constitution serves as law, and importantly, American law—not British law. The Fourteenth Amendment should be viewed as an effort to legitimize the principles of the Declaration following the fallout of slavery.
Safeguarding the Core
The Reconstruction Congress aimed not to conserve British constitutional frameworks but rather to finalize the work initiated in 1776. The Declaration asserted that “all men are created equal.” In contrast, Dred Scott denied that notion, suggesting an entire class of Americans could never be recognized as part of a political community. However, the Fourteenth Amendment rectified that claim without reverting to British imperial doctrine; it reinstated foundational American principles.
This is why the majority’s repeated characterization of the citizenship clause as “declaratory” does not address the core issue. What declaration are we referencing? The customary laws for royal subjects inherited from England? Or the constitutional civil rights laws evolved through the American experience since the Declaration, the Revolution, and enduring self-governance?
The Fourteenth Amendment was ratified in 1868, not 1768. Thus, it ought to be understood through the lens of the American Republic’s constitutional vision, contrasting starkly with the British Empire’s historical context.
The Citizenship Clause maintains that “all persons born or naturalized in the United States, and all persons subject to the jurisdiction thereof, are citizens.” This clause demands more than mere birth within the U.S.; it adds the stipulation of being “under the jurisdiction” of the United States, a critical nuance.
The majority has effectively equated “obeying jurisdiction” with “obeying American law.” Aside from diplomats and sovereign Indian tribes, anyone physically within the country must follow American laws. From this conclusion, the majority surmises that nearly everyone born on U.S. soil becomes a citizen.
However, the Reconstruction Congress was addressing a much deeper concept—defining membership within the American political realm. The debates surrounding the Civil Rights Act of 1866 and the Fourteenth Amendment spoke to notions of absolute jurisdiction, complete loyalty, and unbroken political obligation. Senator Lyman Trumbull, a key author of the Civil Rights Act, clarified that citizenship encompassed not only those who were temporarily responsible for U.S. laws but also those fully subject to American jurisdiction.
While every international visitor is bound to follow American laws during their stay, merely complying with those laws does not equate to total political allegiance. If it did, the jurisdiction language wouldn’t enhance the Constitution’s text meaningfully.
The Civil Rights Act of 1866 provided similar language, extending citizenship to those born in the U.S. and “not subject to any foreign power.” Although the Fourteenth Amendment tweaked the phrasing, the fundamental concept of complete political jurisdiction remained unchanged—it’s about political belonging, not merely geographic location.
This rationale makes opposing arguments stronger from an originalist standpoint.
Understanding American Citizenship
Justice Clarence Thomas begins by questioning how Americans understood citizenship after breaking free from British subjecthood—a question largely overlooked by the majority. This is the essence of the originalist inquiry. It isn’t just about how English courts defined Crown subjects; it’s about how Americans conceptualized membership in a self-governing republic.
The majority’s approach to USA vs. Won Kim Ark presents similar methodological challenges. Roberts labeled the recent decision as a faithful interpretation of existing precedents, giving Won Kim Ark a broader influence than it may merit.
The case revolved around a child born in San Francisco to legally residing parents. This ruling addressed the particular contention at hand but didn’t clarify if constitutional mandates apply to children of temporary visitors or undocumented immigrants.
Indeed, Justice Horace Gray’s opinion draws heavily from British tradition. However, this reasoning extends well beyond earlier scenarios. The discussions regarding temporary visitors and the overall reach of the citizenship clause warrant examination based on historical foundations rather than treating every remark as unequivocal court ruling.
This is particularly critical. Won Kim Ark traces its roots back to English common law traditions. Today’s courts are repeating this trajectory. Yet, whether Justice Gray accurately grasped the original intent of the Fourteenth Amendment remains a topic up for debate.
Over the last two decades, scholars, including Edward Ahler, Michael Anton, and myself, argue that the Citizenship Clause should be framed in the context of the American Revolutionary War rather than Britain’s common law of perpetual allegiance.
This proposition doesn’t negate England’s legacy; rather, it challenges whether the American Revolution fundamentally rejected English legal assumptions about perpetual allegiance.
Chief Justice Roberts provides an intellectually robust justification of the traditional understanding. The majority opinion garners respect for its academic rigor and careful navigation of complex historical materials.
Nonetheless, the effectiveness of this scholarship hinges on the questions it chooses to address.
While Roberts has shown that England recognized jus soli, he hasn’t convincingly articulated why, following the rejection of monarchy and the establishment of government by consent, American citizens should have enshrined British doctrine rather than reinterpreted their inherited legal language through an American lens of citizenship.
Thus, the central dispute between the majority and dissenters isn’t merely about Blackstone or Won Kim Ark. It pivots on the achievements of the American Revolution. Did it merely shift sovereignty from the monarch to the populace while retaining the British concept of political membership? Or did it fundamentally reject that notion in favor of citizenship grounded in consent, loyalty, and active participation in the American political sphere?
Judge Thomas has rightly placed this inquiry front and center. For originalists, this is indeed the crux of the matter.
The Declaration of Independence provides a clear answer, advocating the principle of consent against feudal loyalty. As we approach the 250th anniversary of this seminal document, its significance is more relevant than ever.
