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SCOTUS Birthplace Citizenship Decision Is John Roberts’ Roe v. Wade

Trump v. Barbara may ultimately come to be remembered not as the final word on birthplace citizenship but as another constitutional detour waiting to be corrected.

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There are Supreme Court decisions that faithfully interpret the Constitution, even when reasonable people disagree about the outcome. And then there are decisions in which the justices appear to begin with the outcome they want and only afterward search for constitutional language to justify it. The Supreme Court’s decision in Trump v. Barbara belongs firmly in the latter category.

The case centered on one sentence of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The court interpreted this language to constitutionally guarantee citizenship to virtually every child born on American soil, including the children of illegal aliens and temporary visitors who come to the United States solely to give birth.

Justice Samuel Alito captured the consequences better than anyone else in his dissent:

As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of “birth tourists,” women who come here solely for the purpose of giving birth to a child and then promptly return home.

As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of “birth tourists,” women who come here solely for the purpose of giving birth to a child and then promptly return home.

A Chinese woman can board a flight from China, spend a few weeks in the Northern Mariana Islands, give birth, return home, and her child acquires an American passport as a constitutional right. The practice has become so widespread that, by some estimates, well over a million Chinese nationals have acquired American citizenship through this mechanism.

And after Trump v. Barbara, Congress cannot simply vote to change it. Nor can the American people. Five justices have placed the issue beyond the reach of ordinary democratic government and elevated it into constitutional doctrine.

For conservatives, the irony is almost unbearable. This opinion represents exactly the sort of judicial behavior they spent half a century condemning in Roe v. Wade. The objection to Roe was never simply abortion. It was that the court manufactured constitutional law from its own policy preferences, transforming a disputed political question into an immutable constitutional command without the constitutional text actually requiring it.

Chief Justice Roberts, joined by the three liberal justices as well as Amy Coney Barrett, has now done much the same thing for birthplace citizenship. Whether history ultimately concludes that this opinion reflected policy preferences, ideology, or simply another manifestation of Trump........

© The Federalist