The Birthright Citizenship Debate Is About to Get Worse

By Jonah Goldberg

Wednesday, July 01, 2026

 

Here’s what I believe to be true: It’s entirely reasonable to oppose America’s system of birthright citizenship. Many prosperous and democratic countries do not have such a policy. We don’t think they’re all “nativist” or anti-immigrant.

 

The argument that the drafters of the 14^th Amendment did not intend for it to allow for blanket birthright citizenship for (nearly) any person born on our soil is not unreasonable, even if you find it unpersuasive.

 

Even if you think the birthright citizenship system we’ve had for more than a century is constitutionally required and has generally served us well, that doesn’t mean you can’t change your mind about the system’s desirability, given massive changes in transportation technology, the growth of the welfare state, changes to the economy, or other considerations. The 14^th Amendment didn’t foresee jet travel. Nor did it anticipate the staggering wealth inequalities between the U.S. and nations with billions of desperately poor people who even more desperately would like to live here. If those factors change your view of the desirability of the birthright citizenship system, that’s fine. When the facts change, you’re allowed to change your mind with them.

 

But, lest you think I am making a “living Constitution” argument, just because you changed your mind about a policy doesn’t mean the Constitution’s meaning changed, too. If you believe the Constitution requires birthright citizenship, jet planes and modern global poverty don’t change the meaning of the Constitution. If the Constitution says X and X is no longer in America’s interest, the remedy is to amend the Constitution.

 

I thought Donald Trump’s executive order attempting to end birthright citizenship was flatly unconstitutional. But I had an open mind about whether Congress could tweak birthright citizenship rules via rewriting current law. The relevant statutes echo an 1898 Supreme Court case—United States v. Wong Kim Ark—which says the “subject to the jurisdiction thereof” language in the 14^th Amendment applies to (nearly) everyone born on American soil. Justice Brett Kavanagh explains in his opinion (which concurred with the judgment but dissented with the majority opinion in part), “In 1940 and 1952, Congress employed the exact language from the Fourteenth Amendment—‘subject to the jurisdiction thereof’—in comprehensive new immigration and naturalization laws that provided for birthright citizenship.” He adds that if Congress disagreed with the reasoning in Wong Kim Ark, it would have said so. It didn’t.

 

Congress could have included, at least in theory, further qualifications about what “subject to the jurisdiction thereof” means and who the 14^th Amendment applies to. According to the statute(s), for example, children of diplomats aren’t automatically U.S. citizens. I think it’s fine if Congress wanted to say that children of, say, Chinese billionaire tourists can’t automatically become citizens because a private jet was parked on an American tarmac long enough for a surrogate to give birth. Yes, you’d have to clean up the language, but you get the point.

 

That’s why, if I had my druthers, the Supreme Court would have simply invalidated the executive order and left the rest an open political and constitutional question. As I understand it, the court went further than that. It settled the meaning of the 14th Amendment as a constitutional matter, making it hard or impossible for Congress to tweak how it’s enforced, in effect making the amendment process the only way to reform birthright citizenship. The other possibility, of course, is for Congress to try to write a new rule and test it at the Supreme Court hoping the court significantly revises its ruling or overturns it. That, of course, would require Congress to step up, do its job, forgo having an easy issue to demagogue, and take responsibility on a controversial issue. Yeah, stop laughing.

 

My position is not that dissenting Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch are right on the constitutional question and the historical narrative they invoke. Nor is it that they are wrong. I haven’t answered the question to my own satisfaction. My position is simply that it would have been better to let Congress try to write legislation that dealt with the problems—real or perceived—with the current system. If lawmakers overreached, the court could still invalidate the law. Indeed, it could still reach the same conclusion it reached today.

 

But the debate would have been worthwhile, even though it would surely be ugly at times.

 

But the court’s decision has not spared us an ugly debate over birthright citizenship any more than Roe v. Wade spared America an ugly debate over abortion. Indeed, I suspect the debate will be uglier now, precisely because modest, incremental, legislative reforms have been put out of reach of the conventional political process. Instead, there will likely now be a fight for a(nother) constitutional amendment. Moreover, as with abortion, members of Congress can now take extreme positions precisely because they have been stripped of power and democratic accountability on the issue. The parties polarized over abortion for the same reason: There was no price to be paid for taking a zero-sum position on abortion.

 

I suspect we’ll see something similar as controversial edge cases come to define the issue. The Chinese billionaire passport holder and the pregnant illegal immigrant border jumper will become the equivalent of late-term or partial birth abortion. That doesn’t make such edge cases trivial or illegitimate. Late-term abortions were—and are—rare, but that doesn’t mean they are not morally significant. Unlawful killings by ICE agents are rare. That doesn’t mean they shouldn’t be a cause for outrage. Abuses of birthright citizenship are comparatively rare, but that doesn’t make objections to them invalid.          

 

One last point. Contrary to a lot of instant hysteria and fearmongering on social media, nothing has really changed with this decision. Trump’s executive order was never implemented. So, the birthright citizenship regime, in practical terms, is the same one we’ve had for more than a century. And pretty much every would-be exploiter of our system already knew of the policy yesterday. Instead of changing anything, this has ratified the status quo. And let us take notice of an important fact: Under this interpretation of the 14^th Amendment, America became the most prosperous and powerful country in the world. That’s not to attribute causation; it’s simply an observation that this has been the way we did things when the nostalgists of today thought America was great.

 

This is important to point out for several reasons. First, the catastrophism we will hear from the White House and its supporters is political theater intended for partisan mobilization. Second, it illustrates that what the Supreme Court did today is what it has done throughout the Trump era: ruled without undue consideration of the president’s political desires and interests. I am not saying it always ruled correctly. For instance, I think the 2024 presidential immunity case was wrongly decided. But claims that this court has been a “rubber stamp” for Trump cannot be easily squared with this ruling (or its Monday ruling on counting ballots after election day). The narrative that the court advances Trump’s political desires and interests has a contradiction built into it: Trump’s desires are not always in his political interest, and his political interests are not always foremost in his desires. The court’s decision today surely disappointed Trump (and adviser Stephen Miller), but it gave him a useful political issue in the same way Roe gave the abortion issue to a generation of politicians and activists on the right and left.  

 

Which brings me to my last point. What the court did today wasn’t just an extension of the status quo with regard to birthright citizenship. It was an extension of the tendency of the Supreme Court to spare Congress the burden of doing the hard work it was elected to do. Rather than settle an issue, it more than likely turbocharged it.