Who Gets to Be an American?

It's Wednesday, July first. Yesterday the Supreme Court ruled 6-3 that birthright citizenship is protected by the Constitution, striking down an executive order that would have denied citizenship to babies born in the US to undocumented or temporary parents. Chief Justice Roberts wrote the opinion. Justice Thomas wrote a 91-page dissent. The president attended the oral arguments back in April, which has never happened before with a sitting president. We covered the Indian Citizenship Act back in June, the fact that Native Americans weren't granted citizenship until 1924, 148 years after the country was founded. Yesterday's ruling is the same question showing up again: who gets to be an American? The country has been arguing about this since before it was a country, and the answer has changed more times than most people realize. The 14th Amendment was ratified in 1868, three years after the Civil War ended. The specific sentence at the center of yesterday's ruling reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

That sentence exists because of one of the worst Supreme Court decisions ever issued. In 1857, the Court ruled in Dred Scott v. Sandford that Black people, whether free or enslaved, could never be citizens of the United States. Chief Justice Roger Taney (TAW-nee) wrote that Black people were "so far inferior that they had no rights which the white man was bound to respect." That language was in an official Supreme Court opinion. Eleven years later, after a war that killed over 600,000 people, the 14th Amendment was written specifically to overturn Dred Scott and guarantee that anyone born on American soil was an American citizen, regardless of their parents' race, origin, or legal status.

The men who wrote it were deliberate about the breadth. During the Senate debates, some legislators proposed narrower language that would have limited citizenship to formerly enslaved people. The framers rejected that approach and chose universal language on purpose, because they wanted the principle to apply beyond the specific crisis that prompted it. Roberts cited this in yesterday's opinion, noting that there was "scant evidence" for the argument that the amendment was meant to apply only to a narrow group. The amendment says "all persons." It means all persons. The 14th Amendment was tested thirty years after it was written, and the case involved a man most Americans have never heard of whose name should probably be more famous than it is.

Wong Kim Ark was born in San Francisco in 1873 to Chinese parents who were legal residents but, under the Chinese Exclusion Act of 1882, could never become citizens themselves. Wong grew up in San Francisco, worked as a cook, and in 1894 traveled to China to visit family. When he tried to return to the United States, he was denied entry at the port of San Francisco on the grounds that he was not an American citizen.

His case went to the Supreme Court, and in 1898, the Court ruled 6-2 that Wong Kim Ark was a citizen because he was born on American soil. The ruling established the principle of jus soli, the right of the soil, as the governing standard for American citizenship. If you're born here, you're a citizen, regardless of who your parents are or what their immigration status is. That precedent held for 128 years without serious challenge. It held through periods of intense anti-immigrant sentiment, through two World Wars, through the Japanese internment camps where newborn babies of detained Japanese nationals were automatically granted citizenship because they were born on US soil. The principle was so broadly accepted that it wasn't even controversial for most of American history. On January 20, 2025, the first day of his second term, President Trump signed an executive order that sought to redefine birthright citizenship. Under the order, babies born in the United States would no longer automatically receive citizenship if both parents were undocumented or if one parent was a temporary visitor like a tourist or a student. The order never went into effect because every lower court judge who reviewed it blocked it, with one judge calling it "blatantly unconstitutional."

The case, Trump v. Barbara, reached the Supreme Court this spring. The Court heard two hours of oral arguments on April 1, with Trump in attendance. Yesterday's 6-3 ruling struck down the executive order. Roberts, joined by Kagan, Sotomayor, Barrett, and Jackson, held that the 14th Amendment's citizenship clause means what it says and has meant what it says since 1868, that birth on American soil confers citizenship. Kavanaugh agreed with the result but on narrower grounds, saying the executive order violated federal statute rather than the Constitution itself.

Thomas wrote the lead dissent, arguing that the 14th Amendment was intended only for formerly enslaved people and their descendants, not for the children of foreign nationals. Justice Jackson, who like Thomas is African American, responded to that argument directly, pointing out that Thomas, who has long advocated for a colorblind interpretation of the Constitution, was now arguing that the citizenship clause was a race-specific remedy. The exchange between the two justices is worth reading in full because it captures a genuine, substantive disagreement about what the 14th Amendment was designed to do and who it was designed to protect.

The practical stakes were significant. If the executive order had been upheld, tens of thousands of babies born in the US each month to undocumented parents would have been denied citizenship, creating what the ACLU described as "a permanent subclass of people born in the United States who are denied their rights as American citizens." The ACLU attorney who argued the case, Cecillia Wang, herself a birthright citizen born to Chinese parents, framed the principle in terms that connect directly to the Wong Kim Ark case 128 years earlier: "In America we do not punish children for the sins of their fathers, but instead we wipe the slate clean." If you've been listening to this show for a while, you've heard this question before in different forms. The Indian Citizenship Act of 1924 granted citizenship to the people who were here before anyone else, 148 years after the country's founding. The Loving v. Virginia decision in 1967 established that the right to marry couldn't be restricted by race, 178 years after the Constitution was ratified. Juneteenth marks the day in 1865 when enslaved people in Texas learned they were free, two and a half years after the Emancipation Proclamation. In each case, the gap between the principle and the practice was measured in decades or centuries, and closing it required either a court ruling or a constitutional amendment because the political system wouldn't do it on its own.

Yesterday's ruling fits that pattern. Birthright citizenship has been the law for 158 years and the accepted legal standard for 128, but it took a Supreme Court case in 2026 to confirm that it means what everyone thought it meant. The fact that it needed confirming at all tells you something about how durable these questions are. "Who gets to be an American?" is not a question the country has answered once and moved on from. It's a question that gets reopened in every generation, under different circumstances, with different groups at the center, and the answer depends on who's asking and who's deciding.

Most countries don't do birthright citizenship at all. Only about 30 nations worldwide grant automatic citizenship based on birth on their soil, and nearly all of them are in the Americas, a legacy of the colonial era when new nations needed to build populations quickly. The United Kingdom abandoned birthright citizenship in 1983. France, Germany, and most of Europe have never had it. The American version is unusual globally, and yesterday's ruling preserved its place in the constitutional order. Whether that remains settled depends on whether Congress pursues legislation, whether a future court revisits the question, or whether the country eventually decides, as Alito suggested in his dissent, that the principle is a "medieval rule" it has outgrown. So if this comes up in conversation, here's how to think about it. The Supreme Court ruled 6-3 yesterday that birthright citizenship is protected by the 14th Amendment, striking down an executive order that would have denied citizenship to babies born in the US to undocumented or temporary parents. The 14th Amendment was written in 1868 specifically to overturn the Dred Scott decision, which held that Black people could never be citizens. The amendment's framers chose universal language on purpose, rejecting narrower proposals. In 1898, the Court applied that principle to Wong Kim Ark, a San Francisco-born son of Chinese immigrants who was denied re-entry to his own country. That precedent held for 128 years and was reaffirmed yesterday. The same question, who gets to be an American, has been reopened in every generation, from Native Americans in 1924 to interracial couples in 1967 to the children of immigrants in 2026. The answer has always depended on who was asking and who was deciding. Yesterday, the Court decided again.

Stay informed, stay curious, and we'll see you tomorrow.