Activist Judges!

While the amendment’s specific target was Dred Scott, it was written more broadly, not merely to prohibit racial discrimination or to make the newly freed slaves citizens but to declare citizenship a constitutional right of everyone born in the United States and “subject to the jurisdiction thereof.” Like the Fourteenth Amendment more generally, the citizenship clause was a guarantee of equality. Citizenship, after all, is the foundation of one’s belonging to and status in a political community, and it is the source of important rights. Equal citizenship is the foundation of democracy, and the framers sought to prevent politicans from eroding that foundation…

…[T]here have always been some who viewed this rule as too permissive and advocated for limiting citizenship to children of US citizens. In the 1890s, when the Chinese Exclusion Act barred entry to Chinese nationals, the federal government sought to exclude Wong Kim Ark, a young man who had been born in the US to Chinese parents. The government argued that he was not a citizen because his parents were Chinese foreign nationals. The Supreme Court rejected that argument and instead interpreted the citizenship clause to apply the English and American common law described above. The decision in United States v. Wong Kim Ark (1898) exhaustively reviewed the legal precedents and repeatedly noted that the only two exceptions to birthright citizenship under English common law were children born to foreign ambassadors or those born in hostile occupied territories. It reasoned that the American common law adopted the same exceptions, with a single addition for the children of Native Americans on tribal land. The Court treated Native Americans as having a status similar to that of ambassadors: they were physically within US territory but considered subject to a foreign sovereign’s jurisdiction. (Congress subsequently extended birthright citizenship to all Native Americans by statute in 1924.)…

Though there were two dissenters in the Wong Kim Ark case, the question has been considered settled for many generations. The Franklin Delano Roosevelt administration took the view that children of even temporary visitors were entitled to citizenship by birth, and the Justice Department has long maintained that position. Congress enacted legislation in 1940 and 1952 that incorporated wholesale the language of the citizenship clause, thereby endorsing the view that had been established in Wong Kim Ark and long applied by the federal government. The Trump administration’s brief explains, however, with typical Trumpian modesty, that everyone has been “mistaken” for all these years, and that Trump has now corrected the mistake.

But the established consensus is no mistake. It reflects a fundamental commitment to equality. By guaranteeing that everyone born in the country is equally a citizen, the framers overruled Dred Scott and sought to enshrine citizenship in a simple fact—birth in the US—that could not be manipulated to deny equal treatment. In Wong Kim Ark, the Court reaffirmed that principled commitment to equality in the face of widespread anti-Chinese prejudice. Today a government that fans the flames of prejudice against those deemed different from us seeks once more to deny this guarantee of equality. Against it is arrayed the Constitution’s text, history, and original understanding as well as the long-standing position of all three branches. That should be more than enough for the Supreme Court to tell Trump no.

Alito is now bringing up Iranians. He's basically asking about "sleeper agents," the conservative belief that babies of immigrants can be raised as Manchurian Americans who will somehow turn on us when they are *activated* at a later date.

— ElieNYC (@elienyc.bsky.social) April 1, 2026 at 11:44 AM

Wang hits him back with "that means that children of Irish, and ITALIAN immigrants would also not be a citizen."
Alito is the son of Italian immigrants.

— ElieNYC (@elienyc.bsky.social) April 1, 2026 at 11:45 AM

Even Chief ‘Just Us’ Roberts is scurrying away from the Trump argument:

SAUER: We're in a new world where 8 billion people are one plane ride away from having a child who's a US citizen.
JOHN ROBERTS: It's a new world. It's the same Constitution.

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— Aaron Rupar (@atrupar.com) April 1, 2026 at 11:03 AM

We are ruled by morons and it makes me want to light my law degree on fire

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— T. Greg Doucette (@gregdoucette.bsky.social) April 1, 2026 at 11:00 AM

I mean, good, but it’s still a sign of profound dysfunction if this isn’t 9-0. A justice who will sign off on this is effectively announcing there’s nothing too flagrantly unconstitutional to get their blessing if a Republican president does it.

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— Julian Sanchez (@normative.bsky.social) April 1, 2026 at 11:41 AM

Lots of good coverage of today’s argument to choose from, like @elienyc.bsky.social or @atrupar.com or @mjsdc.bsky.social. A few points.
First: it looks good for the rule of law winning, but I thought that before the immunity decision, so I am not 100% sure.
/1

— A New And More Reasonable Popehat (@kenwhite.bsky.social) April 1, 2026 at 12:51 PM

/2 Second: it’s a travesty this bullshit was treated this seriously — and it did real harm to the nation and democracy that it was indulged.
Third: It’s a very bad sign how many absolute amoral shameless hacks are willing to conjure up bullshit to support it.

— A New And More Reasonable Popehat (@kenwhite.bsky.social) April 1, 2026 at 12:51 PM

/4. Fourth: Advocacy does have a moral component. Lying about law and history in an effort to make millions of people stateless is not “doing law the right way.” The notion that advocacy is morally neutral or even inherently good if performed according to cultural ritual remains vapid and harmful.

— A New And More Reasonable Popehat (@kenwhite.bsky.social) April 1, 2026 at 12:53 PM

/5 To expand on Point Four: the enemies of democracy and freedom are not just hacks like Wurman and Barnett, it’s also the people who demand that we treat Wurman and Barnett as good-faith commentators because they talk in law review articles or NYT editorials. Call evil evil.

— A New And More Reasonable Popehat (@kenwhite.bsky.social) April 1, 2026 at 12:55 PM

Just so everyone knows, the Solicitor General straight up lied about the 1921 law review article he kept talking about. quick thread:

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— Evan Bernick, a finite mode with a smol hooman and a lorg floof (@evanbernick.bsky.social) April 1, 2026 at 3:13 PM

Here’s the part that Sauer highlighted, to make it look like contemporaries understood Wong Kim Ark to contain a domicile requirement. Note the “however“ at the beginning of the next sentence…

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— Evan Bernick, a finite mode with a smol hooman and a lorg floof (@evanbernick.bsky.social) April 1, 2026 at 3:14 PM

Here’s the transcript. Sauer is just… lying.

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— Evan Bernick, a finite mode with a smol hooman and a lorg floof (@evanbernick.bsky.social) April 1, 2026 at 3:19 PM

This is so clear cut. Ok done.

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— Evan Bernick, a finite mode with a smol hooman and a lorg floof (@evanbernick.bsky.social) April 1, 2026 at 3:20 PM

This wasn’t the only time, but it’s illustrative. He sounded like he had an answer for a lot of things, but only because he made things up.

— Evan Bernick, a finite mode with a smol hooman and a lorg floof (@evanbernick.bsky.social) April 1, 2026 at 3:23 PM

“The Constitution isn’t a suicide pact,” like “you can’t yell fire in a crowded theater,” is a vapid content-free bromide that translates to “my policy preferences override the constitution.” It doesn‘t mean a Goddamned thing and never has.

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— A New And More Reasonable Popehat (@kenwhite.bsky.social) April 1, 2026 at 2:47 PM

Donald Trump didn't make it through the entire Supreme Court oral argument on birthright citizenship, leaving before they were over, per White House pool.

— Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com) April 1, 2026 at 11:29 AM

Even if the Supreme Court rules to uphold Birthright Citizenship, and I suspect it will, Trump will still have succeeded in politicizing an issue that has largely gone unquestioned by most Americans. To that extent he will have weakened–perhaps permanently–another pillar of our democracy.

— Kevin M. Levin (@civilwarmemory.bsky.social) April 1, 2026 at 9:34 AM

loud dumb and wrong, that’s the donald trump guarantee

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— not an art thief (@famousartthief.bsky.social) April 1, 2026 at 1:21 PM

"Here is how the constitution should understand citizenship" says man selling American citizenship for $1 million.

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— Don Moynihan (@donmoyn.bsky.social) March 31, 2026 at 10:19 PM