Everything changed this Tuesday, and nothing did.
In a 6–3 ruling, the Supreme Court upheld near-universal birthright citizenship, striking down an executive order that would have ended the practice for the children of illegal aliens and temporary residents.
Conservative commentators were apoplectic. “I at least got to live for 40 years in a country that looks and functions something like America,” wrote Matt Walsh of the Daily Wire to his 4 million X followers. “The fact that my children are having that opportunity stolen from them fills me with rage so deep I can’t describe it.”
As mocking critics pointed out, America’s system of birthright citizenship remains the same today as it’s been since the late 1890s, so nothing was “stolen” from Walsh’s children Tuesday. On the other hand, the context and consequences of that system have changed dramatically in the modern era, as Walsh himself observed.
Mark Krikorian of the Center for Immigration Studies told The American Conservative that mass immigration “is incompatible with the goals and characteristics of a modern society, in a way that really wasn’t true 100 or 200 years ago.” Smart phones and social media pose challenges for assimilation, allowing newcomers to inhabit two worlds at once, while the welfare state enables poor, unskilled immigrants to make a decent, if unproductive, life.
Among the changes left unmentioned by Krikorian is the rapid demographic transformation of America and indeed much of the Western world. Of course, it’s more or less verboten in polite society to suggest that whites becoming minorities in their ancestral homelands might be a bad thing, at least for whites. But even President Barack Obama has acknowledged that multiracial societies make democracy a troublesome project.
“Democracy is simplest where everybody thinks alike, looks alike, eats the same food, worships the same god,” Obama said a decade ago. “Democracy becomes more difficult when there are people coming from a variety of backgrounds and trying to live together.” In other words, deep ethnic divisions undermine social concord and imperil republican government, as philosophers from Aristotle to Machiavelli have understood. Why, then, have liberals made diversity the supreme value of their ideology?
And the problem isn’t about just the ease with which our republic functions, but its very purpose: serving a distinct people that, in some sense, preexists it. “We the People of the United States,” begins the preamble to the U.S. Constitution. The profound implication is that “We” were a people before our government was established and our political liberty secured.
Of course, our immigration system facilitates the incorporation of newcomers into the body politic, but thanks to mass migration and near-universal birthright citizenship, we’ve lost control of that process, to the outrage of conservatives. “The idea that we don’t get to decide who moves here and becomes our fellow citizen, but foreigners get to decide that, it’s absurd,” the author and lawyer Ann Coulter told TAC.
Moreover, Coulter insists, the Constitution doesn’t actually enshrine this absurdity into law. She seems to be right. The 14th Amendment—ratified in the aftermath of the Civil War—had nothing to do with the children of illegal aliens or temporary residents. Coulter and many other conservatives emphasize that it was crafted to guarantee citizenship for freed slaves, who could claim no other homeland but the United States.
Evidently, the Supreme Court disagrees, discerning in the amendment a conception of American identity that its framers, and America’s Founders, would not have recognized. The majority’s decision bolsters the absurdist interpretation of birthright citizenship and closes the possibility of altering it legally via presidential action.
Still, there are silver linings here for conservatives. Many analysts had expected the court to strike down the executive order by an overwhelming margin, and liberals were scandalized that three justices appeared willing to let it take effect. Moreover, one justice counted among the majority, Brett Kavanaugh, argued the EO violated a federal statute that mirrors the 14th Amendment, but not necessarily the amendment itself. So, the split was actually 5–4 on the constitutional dispute, meaning SCOTUS might let Congress redefine birthright citizenship via statute after one of the five leaves the court.
More generally, Trump’s EO has opened an important conversation about the nature of citizenship, shifting the range of acceptable opinion. In the first article I wrote after joining TAC—entitled “The Birthright Battle Begins”—I praised Trump’s EO on that basis. While liberal commentators often complain that Trump “politicizes” settled issues, it was precisely the politicization of birthright citizenship that gave me some hope:
According to elite consensus, Trump is trying to upend the constitutional order by fiat. But there’s another way of seeing things. By ordering the end of birthright citizenship, Trump has wrestled the issue of belonging away from the lawyers and judges and put it back inside the political arena. His action will raise public consciousness and perhaps lead Congress to pass a law clarifying the scope of the 14th Amendment.
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The judges may have wrestled the issue back, but the Trump administration doesn’t seem defeated. “How many times did we hear people say this was going to go eight to one against the administration?” said Vice President J.D. Vance on Fox News. “We made some very compelling arguments, we have the better case, we’ve just got to keep fighting at this.”
Those arguments have persuaded an audience wider than even the most optimistic conservatives could have imagined. Readers of the Washington Post must have been surprised to read the editorial board’s op-ed criticizing this week’s ruling. “Trump’s executive order prompted an avalanche of scholarship on the meaning of the amendment’s citizenship clause, some of which called into doubt the modern, conventional interpretation,” they acknowledged. “Declining to reach the constitutional question would have allowed that debate to continue.”
The Post needn’t worry: That debate will continue. And conservatives, I reckon, will eventually win.
