Overview from The Hill

The actual text of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The controversial part is underlined.

By the reckoning I use, they upheld it by a 3-1 decision. I say that because there are five justices whose votes I can predict 100% of the time, even though I know nothing about constitutional law. As soon as I know what the issue is, I know how Thomas, Alito, Jackson, Sotomayor and Kagan will vote. I don’t know need to know what the legal issues are because I know they will find some legal pretext to vote they way they want to. In this case the four remaining justices split 3-1, with Gorsuch dissenting.

I know that the legal reasoning of Alito and Thomas will be sophistry, so let’s see what Gorsuch had to say:

“At the heart of today’s dispute lie two competing views of the Fourteenth Amendment’s Citizenship Clause. On one account, the Clause incorporated the English common law rule of jus soli (literally, the ‘right of the soil’),” he noted. The other account, he said, “adopted a distinctly American settler’s view of citizenship … that promises the full ‘dignity and glory of American citizenship’ to any child born in this country to parents who have made this Nation their permanent home **, regardless of their race, religion, or national origin.”

(Gorsuch went on to agree with the latter interpretation. The majority obviously did not.)

I know that the legal reasoning of Kagan, Sotomayor and Jackson will be sophistry, and Kavanaugh sided with the majority for a completely separate reason, so let’s see what Roberts and Barrett had to say:

Roberts wrote:

“The Court exhaustively canvassed the text and history of the Citizenship Clause and at no point identified any evidence that the ratifiers thought themselves to be imposing a domicile limitation.”

Amy Coney Barrett did not write a separate opinion, so we presume she agreed with Roberts’ reasoning. I don’t know the history he’s citing, but assuming he is correct, that sounds like a reasonable position to me.

Kavanaugh flew solo, and went in his own direction. He opined that birthright citizenship could be further* limited, but not in this case. It would require an act of Congress, not the simple declaration of one man (Trump in this case). Even if such a law were passed, the other five in the majority would presumably deem it unconstitutional.

——

Footnotes:

* There are exceptions now.

1. Children born in the USA to foreign diplomats are NOT entitled to birthright citizenship, while children of American citizens assigned overseas ARE.

– John McCain is a famous example of the latter.

– The cleanest example of the former is Amany Mohamed Raya. She was born at Walter Reed in Washington, D.C., in 1981 to an Egyptian embassy attaché. When she applied for a U.S. passport in 2004, the State Department denied it, saying her father had diplomatic privileges and immunities at her birth, so she “did not acquire U.S. citizenship” and was “not entitled to a U.S. passport.” The federal courts agreed.

2. Another exception would be a baby born on a foreign ship in US territorial waters. They are technically in the USA, but not legally subject to the jurisdiction thereof.

** Note that one interpretation of the Gorsuch definition could allow citizenship to the children of illegal immigrants living here and trying to make the USA their permanent home, but would not grant citizenship to children born of visitors. I think I actually agree with that position. It doesn’t seem to me that the USA border is like the touchdown line in football. A pregnant woman crossing the line on “vacation” shouldn’t score the TD. But that’s just my opinion, not a legal position.