What the 14th Amendment says about birthright citizenship

Added: 2026-06-02

[00:00:00]Scott, roughly 160 years ago, the 14th Amendment passed and provided birthright citizenship.

[00:00:06]Now the Supreme Court is listening and hearing a case and will decide soon on whether that is constitutional.

[00:00:13]Talk to me about that.

[00:00:15]We are in an era now where some of the accepted understanding of the Constitution are being revisited, and that, to some extent, what originalism, one of the schools of interpretation of the Constitution, that is a lot of supporters on the current Supreme Court, it's the idea that we need to go back to how the original framers of this particular amendment, what they meant at the time, and that may depart from subsequent meanings that people have adopted.

[00:00:40]That said, in this case, specifically about birthright citizenship, that's a harder argument to make.

[00:00:45]And I think we saw it in oral arguments that happened in the case around this principle, Trump v. Barbara, a few weeks ago, where we saw the court be fairly skeptical of the government's arguments.

[00:00:56]And a big part of that is because this language in the 14th Amendment didn't come out of whole cloth.

[00:01:01]It wasn't inventing this idea of birthright citizenship.

[00:01:03]It was constitutionalizing it.

[00:01:05]It was overriding a Supreme Court decision, the Dred Scott decision, which limited its application to freed slaves and other people in the United States that after the Civil War people wanted to enfranchise, Congress wanted to enfranchise, in an enduring fashion that couldn't be taken away by subsequent legislature, so through a constitutional amendment.

[00:01:24]But the principle it's applying is one that had been in British common law since before the colonies, and that is the principle, that jus soli principle, the idea that when you are born somewhere, you inherited citizenship.

[00:01:36]Here, the government is really arguing for a departure from that principle.

[00:01:39]They're saying no, to be considered eligible for birthright citizenship, you don't have to be born there, you have to be born there in a context where the government has authorized you to be there and has permitted it.

[00:01:50]It's a narrower conception than certainly was prevalent at the time of the Declaration or at the time of the 14th Amendment.

[00:01:56]And again, that's why it's, I think, facing such an uphill battle with justices that otherwise might be sympathetic to either this administration or to originalist-type arguments, because it's not actually originalist.

[00:02:07]It has a lot of trouble rooting itself in that history and that context informing what this language actually meant.