Reclaiming our own birthright: We might need to amend the Constitution – The Hill

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Reclaiming our own birthright: We might need to amend the Constitution

by Jonathan Turley, opinion contributor – 04/04/26 10:00 AM ET

“Well, it’s a new world. It’s the same Constitution.”

Those words from Chief Justice John Roberts during this week’s oral arguments signaled that the conservative justices are unlikely to reject birthright citizenship. Of course, nothing is certain until this summer when the Court issues its opinion in Trump v. Barbara. However, we need to consider the need for a 28th Amendment to reaffirm the meaning of citizenship. 

 As some of us stressed before the oral argument, the odds were against the administration prevailing in the case, given more than a century of countervailing precedent. There are good-faith arguments against reading the 14th Amendment as supporting citizenship for any child born in this country. It is doubtful that the drafters of the 14th Amendment could have envisioned millions of births to illegal aliens. They surely did not imagine foreigners coming to this country for the purpose of giving birth — or even, without ever entering the U.S., contracting multiple U.S. residents to carry babies to term for them as surrogates.

The historical record is highly conflicted. Some drafters expressly denied that they intended for birthright citizenship to be covered by the 14th Amendment. 

The rampant abuse in this country and the widespread rejection of birthright citizenship by other countries (including some that once followed it) did not seem to impress the conservative justices. Roberts’s statement was in response to Solicitor General John Sauer’s argument that “We’re in a new world now … where eight billion people are one plane ride away from having a child who’s a U.S. citizen.”

Although President Trump has lashed out with personal attacks on the conservative justices as “disloyal” and “stupid,” they are doing what they are bound by oath to do: apply the law without political favor or interest. I expect most of the justices agree with the vast majority of countries — and the president — that birthright citizenship is a foolish and harmful policy. But they are not legislators; they are jurists tasked with constitutional interpretation.

Trump appointed three principled justices to the court. To their (and to his) credit, Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett have proven that they are driven by the underlying law, not the ultimate outcome of cases.

For conservatives, constitutional interpretations offer less leeway than their liberal colleagues or believers in the “living constitution.” If you believe in continually updating the Constitution from the bench to meet contemporary demands, constitutional language is barely a speed bump on your path to the preferred outcome in any given case. 

In my Supreme Court class, I call this a “default case” in which justices tend to run home.  When a record or the law is uncertain, conservative justices tend to avoid expansive, new interpretations. That was precisely what Trump said he wanted in nominees.

These justices are not being “disloyal” to him, but rather loyal to what they view as the meaning of the Constitution. I have at times disagreed with their view of the law, but I have never questioned their integrity.

None of this means we should accept the expected outcome in this case as the final word on birthright citizenship. Justice Robert Jackson once observed that he and his colleagues “are not final because we are infallible, we are infallible because we are final.”

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