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

“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........

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