Trump's birthright citizenship case relies on false historical narratives about American immigration
Source: Dahlia Lithwick. "The fundamental lie behind Trump’s birthright citizenship Supreme Court case.." March 16, 2026. slate.com
The Gist
Lithwick argues that Trump's Supreme Court case against birthright citizenship is built on lies about American history. She says we've been told America had open borders until recently, but states actually had strict immigration laws from colonial times. The legal challenge misinterprets what the Constitution's framers meant when they wrote about citizenship.
Conclusion
The Supreme Court case challenging birthright citizenship is based on fundamentally false historical narratives about American immigration and citizenship that distort constitutional interpretation
Premises
- The myth that America had 'open borders' until the late 19th century is historically false - states had elaborate migration laws and restrictions from the Colonial period onward
- Bad originalism exploits these false historical myths to make legally plausible but historically inaccurate constitutional arguments
- The phrase 'subject to the jurisdiction thereof' in the 14th Amendment had clear, narrow exceptions (diplomats, Native Americans, invading soldiers) that did not include children of temporary or unauthorized immigrants
- The 14th Amendment framers were aware of unauthorized people in the U.S. (including smuggled enslaved people after 1808) and intended birthright citizenship to apply to their children
- Modern reinterpretations of 'subject to the jurisdiction thereof' to exclude children of non-citizens are 'ahistorical and wrong' according to the historical record
Assumptions
- Historical accuracy should guide constitutional interpretation in originalist analysis
- The Supreme Court's decision will be influenced by historical narratives presented in legal arguments
- False historical myths have significant legal and political consequences
- The 14th Amendment's birthright citizenship clause should be interpreted according to its original meaning and context