Below is my column on Fox.com on the birthright citizenship case. Republicans in Congress have already submitted legislation for both a new constitutional amendment and specific bars on birth tourism. The legislation will obviously move more quickly and, if challenged, could give the Court another opportunity to address the issue. However, the most direct way of addressing the issue remains a 28th Amendment.
Here is the column:
Today, Folarin Balogun secured a spot on the American soccer team for the World Cup…for a second time.
That may be the most positive spin I can offer to those upset by today’s 5-4 decision in favor of birthright citizenship. Balogun, one of the stars on our team, was born to Nigerian parents visiting the United States and then raised in England.
According to the Supreme Court, he is — and was always intended to be — a citizen under the Fourteenth Amendment.
It is a conclusion that divided the court 5-4, but, as in soccer, a one-point win is as good as a nine-point win.
Roberts wrote for the majority that “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
The victory for birthright citizenship was due to the joining of Chief Justice John Roberts (who authored the decision) and Justice Amy Coney Barrett with the three liberal justices. They found the language and history of the amendment to be clear and, relying on prior rulings dating back decades, concluded that birth alone in this country is enough to confer citizenship — even if born to a tourist or someone briefly on our soil.
It is a view that is rejected by the vast majority of countries, which rightfully view birthright citizenship as bonkers, including some which followed the practice and then rescinded it. The United States remains one of the outliers in maintaining this ill-considered practice.
Justice Clarence Thomas wrote a dissent, joined by Justice Neil Gorsuch, effectively arguing that this is the invention of the Court, which refused to reconsider its lazy prior analysis. That included the Court’s 1898 ruling in United States v. Wong Kim Ark, which expanded birthright citizenship beyond what the Reconstruction Congress had ever “contemplated.” He noted that the Court could have resolved the case on narrower grounds consistent with the 14th Amendment: “Wong Kim Ark addressed only the citizenship of a child born to parents who were lawfully and permanently domiciled in the United States.”
The 5-4 decision unleashed another furious broadside on social media against Barrett, particularly after she authored the 5-4 decision on mail-in ballots again, this time with Roberts and her liberal colleagues.
Barrett hit a nerve as one of the three Trump appointees, whom many hoped would be more in the vein of Alito or Thomas. Instead, she often writes with Roberts.
The attacks on Barrett ignored that there are good-faith arguments on both sides of the birthright citizenship case. They also ignore that she regularly voted with the conservatives and for positions of the Administration. For example, she voted to support states in requiring transgender athletes to compete with their biological sex. She previously was the most vocal justice in rejecting transgender status as a protected class akin to race or religion.
President Trump has lashed out at his nominees over their adverse rulings. However, they remain one of his most impressive and positive legacies. President Trump said that he wanted independent and principled conservatives. He got them in Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They are all extraordinary jurists who have dramatically elevated the Court’s intellectual discussions.
When I testified at Gorsuch’s confirmation in the Senate, I told the senators that they were wrong to pigeonhole the nominee: he would go wherever his convictions took him. That has proven to be the case, and it is a great credit to Trump that he selected such independent minds.
On birthright citizenship, the matter now rests not with the court but the country. We have never truly had a national debate over the practice. The basis and future of birthright citizenship have remained matters almost exclusively for the courts.
We must now decide whether to pursue such a debate as a constitutional amendment.
While Congress can pass legislation cracking down on birth tourism, there is only so much that such laws can do in questioning why particular births occurred in the United States, such as the birth of Balogun.
I can think of no more appropriate debate to have as we celebrate our 250th anniversary than what it means to be a citizen of this unique republic.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
I skip ll of Anonymous’ comments.
Me too! Therefore, I didn’t read your comment.
The textualist breakdown of the ruling reveals how the Court arrived at this conclusion,
A strict textualist approach focuses entirely on the words chosen by the lawmakers. As scholars pointed out on SCOTUSblog, the text of the Citizenship Clause focuses entirely on the status of the child, not the parent: “All persons born… in the United States, and subject to the jurisdiction thereof, are citizens.” The text specifies birthplace, not bloodline or parental immigration status.
The irony is so rich. The conservatives and MAGAs opposed to this ruling are calling for stacking the court, sterilizing women at the border, stopping foreign women from entering the country, forcing women to take pregnancy tests, etc. pretty wild stuff. You can bet it’s the ‘great replacement’ theorists and bigots who are upset “their” judges didn’t rule their way. Because they were conservative and they should have ruled for the team. Never mind the fact that they had to abide by their strict textualist and originalist interpretation. The uber, textualists and originalists, Alito and Thomas were ready to discard those principles to side with the president.
During oral arguments, even the liberal justices noted that the text says nothing about a parent’s allegiance or permanent home. Historically and textually, anyone physically present on U.S. soil is subject to U.S. laws and jurisdiction (meaning they can be arrested and prosecuted by American courts). That’s what “subject to the jurisdiction thereof” means. Subject to U.S. laws.
AI Hallucinations Are Exploding In U.S. Courts, New Study Finds
https://www.laine.ai/ai-legal-error-hotspots-where-court-filings-go-wrong/
Apologies in advance for the length of this. Bear with me.
Yesterday noon, I posted this responsive comment: “I agree with you about Kavanaugh and his distinction of constitutional vs. statutory (and case law) effect (although some of his words seem more muse than declaration). We can talk more when the good professor starts us off on the Barbara case; right now I do not want to get us all OT.”
So, today is the day! Thanks to Professor Turley.
(1) There has always been legal division about the meaning of our Constitution and Amendments’ making different references to “citizens” and “persons,” e.g., both being distinctly separated and used in the same Amendment, (“No State shall make or enforce any law which shall abridge the privileges or immunities of Citizens of the United States; nor shall any State deprive any Person of….” (as well as the 5thA’s reference to “Persons”). It is hard to defeat the pure 14thA language of “All persons born or naturalized in the United States….”
(2) Notwithstanding, the SCOTUS Barbara decision does not create, but rather effects, a distinct inequity, IMO.
Children born outside of the United States who wish to become citizens do so under the terms of the Child Citizenship Act. Adults over 18 apply for naturalization which requires meeting several requirements including LANGUAGE and CIVICS TEST and presenting good moral character, residency, etc. But a child born jus solis–born even to illegal immigrants who are hostile in conduct and sentiment to the United States, automatically enjoys all the attendant privileges and immunities?
(3) Sorry for any offense, but I must, by analogy, invoke religion here. Catholic and Christian faiths rely on “Baptism” as saving a child from birth. HOWEVER, under at least Catholic doctrine, when a child reaches the age of reason, he must “confirm,” i.e.,
re-affirm the church’s beliefs and tenets (communion and confirmation being holy sacraments for intiation).
(4) So, in the same light as media and progressives refusing to use the words “illegal aliens,” but instead preferring the term “undocumented,” maybe we can imagine a parallel initiative for children of illegal aliens, who can enjoy a presumed, undocumented “citizenship” under the 14th Amendment, along with its attendant protections, BUT upon reaching a certain age, must pass language and civics test for “documented” citizenship? That’s a nice compromise, n’est ce pas?
Justice Kavanaugh is on to something. Here’s another take…
https://www.coffeeandcovid.com/p/inevitability-wednesday-july-1-2026
“Today, Folarin Balogun secured a spot on the American soccer team for the World Cup…for a second time….” -JT
A.I. string: ( The 2026 FIFA World Cup is being co-hosted by the United States, Canada, and Mexico, running from June 11 to July 19, 2026 (39 Days).
How many Soccer Tourist Anchor Babies will be deposited in the United States during this time? )
Re:
There are no official demographic statistics or projections tracking how many children will be born to international soccer tourists during the 2026 tournament. Because the 39-day tournament spans a small window compared to a 9-month human gestation period, any such births would be purely incidental.Data regarding overall birth tourism in the United States does not identify short-term event visitors specifically. The Center for Immigration Studies estimates that birth tourism results in roughly \(20,000\) to \(33,000\) births to women on temporary tourist visas annually, which accounts for a fraction of all U.S. births. Independent demographers and agencies such as the U.S. Centers for Disease Control and Prevention report that these specific figures remain contested and are difficult to track precisely.
—
IMO: More than a Bus load
“The attacks on Barrett ignored that there are good-faith arguments on both sides of the birthright citizenship case.”
“Good-faith” is doing a lot of lifting here. Normally that applies when one party or both have a significant lack of information on the matter and have drawn contrary conclusions.
It seems unlikely that a Supreme Court Justice, with so many clerks and other advisers would ever have a lack of information.
Therefore any Supreme Court argument must be the result of having differing goals but, since there is only one applicable amendment in this case, only one goal can be aligned with it. Any other goal would be clearly in conflict and, since the Justices are well informed, the only way to pursue that goal is by arguing in bad faith.
They can make a good-faith argument about what they want for lunch, but they can’t have a good-faith argument against what is printed on the menu except by ignorance; an excuse the Justices should not have regarding the US Constitution.
Congress can mandate pregnancy tests for any woman who applies for a visa to enter the US. Congress can also impose draconian criminal penalties for birth tourism and international commercial surrogacy, including imposing life at hard labor sentences for lying to get a visa. If it becomes routine for foreign women who give birth in the US getting sentences of life in prison and losing custody of the child which is then put up for adoption in the US, support might grow for amending the Constitution.
It seems like a whole slate of amendments is needed, including non-gerrymandered congressional districts, tax uniformity, and most importantly – Keep 9.
OT but good to see!
America’s competitive spirit: USA’s 250 celebration merges civics, history and culture
“President Trump has been closely tied to the initiative, with the administration promoting it as a way to strengthen patriotic education and civic knowledge among youth.”
https://justthenews.com/government/white-house/americas-competitive-spirit-trumps-250-celebration-merges-civics-history-and