Thomas and Alito weaponized originalism to strip citizenship from U.S.-born children of undocumented immigrants. They failed on the text, and they failed on their own methodology.
The 6-3 ruling handed down on Tuesday preserved what the Fourteenth Amendment has meant since 1898. Chief Justice John Roberts, joined by Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, anchored the majority in the English common-law tradition of territorial birthright and the Court’s holding in United States v. Wong Kim Ark, 169 U.S. 649. The text of the Amendment is plain: “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Justice Kavanaugh concurred in the judgment but avoided the constitutional question entirely, routing the decision through the 1940 and 1952 nationality statutes. The result is correct. The audit is the four theories the dissenters produced in 194 pages of competing opinions.
Justice Thomas, joined by Justice Gorsuch, reconstructed the original public meaning of the jurisdiction clause as requiring “domicile”—a permanent, fixed home in the political community. Citizens, in his reading, were “the permanent members of the body politic—the people whose roots were in a place, who called that place home, and who would, if necessary, go to war for that place.” This view would exclude birth tourists. But Thomas reserved, in a footnote, the question whether the children of long-term undocumented residents could be domiciled here. Gorsuch, in a separate writing, suggested those parents might be domiciled here—“If those parents are not domiciled here, then where are they domiciled?”—opening daylight between the two co-signatories on the central question the case presented.
Justice Alito, dissenting alone, deployed a different theory. The Fourteenth Amendment, in his reading, “confers citizenship on only those children who, at birth, owe allegiance solely to this country.” The “allegiance solely” test is not drawn from Wong Kim Ark or from the historical record on which Wong Kim Ark rests. It is a construction Alito developed for this case and would deploy for others.
The four positions—domicile, allegiance, statutory avoidance, and the majority’s reading of the Citizenship Clause—are mutually exclusive. They cannot all be right about what the Fourteenth Amendment means. The historical record is being read to support four different conclusions. The only way to predict which conclusion a justice will reach is to know the justice.
That record is not obscure. During the 1866 debates, Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, defined the jurisdiction clause as meaning “not owing allegiance to anybody else.” Senator Jacob Howard, who introduced the Amendment on the Senate floor, echoed this understanding. The explicit purpose was to exclude only the children of foreign diplomats. Trumbull, Howard, and the framers understood the jurisdiction clause precisely to not require the “allegiance” and “domicile” tests Thomas and Alito now resurrect. The domicile requirement is a phantom doctrine, constructed to give legal cover to executive ethnonationalism.
The methodology they invoke—originalism, the practice of construing constitutional text according to its original public meaning—does no constraining work in this set of opinions. When Justice Barrett, the conservative legal movement’s chosen instrument for dismantling the post-Roe constitutional order, read the historical record the way the historical record reads, the methodology produced a result the conservative legal movement did not want. The defection is the proof. When Thomas, Gorsuch, Alito, and Kavanaugh read the same historical record, the methodology produced four different results, all consistent with the conservative legal movement’s preferred outcomes and none of them grounded in the record itself.
Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), is the demonstration: a text-and-history analysis that overruled fifty years of constitutional protection for a right the history, on closer examination, did support. New York State Rifle & Pistol Association Inc. v. Bruen, 142 S. Ct. 2111 (2022), placed the burden of historical marshalling on the government and then characterized the historical record to invalidate most regulations the Second Amendment was originally understood to permit. The same Justices who used text-and-history in Dobbs and Bruen cannot locate the text of the Citizenship Clause when the text forbids the nativist outcome. The methodology is the same. The deployment differs.
Kavanaugh’s position is the most strategically revealing: not a middle way but a holding action, with the Citizenship Clause preserved for a case whose facts would force it and the door to overruling Wong Kim Ark left ajar. The supposed orthodoxy is just the Court’s institutional reluctance to upend a century and a half of settled law. Roberts and Barrett did not save birthright citizenship through a deep excavation of the 1866 public meaning; they saved it through the gravitational pull of Wong Kim Ark and conventional stare decisis.
The substantive subject is the doctrinal architecture of the Court’s originalist wing. The executive branch issued the order precisely because the movement has spent decades building a juridical apparatus capable of overriding settled precedent when it conflicts with executive aggrandizement. Across 194 pages of opinions, Thomas, Gorsuch, Alito, and Kavanaugh could not agree on what the Fourteenth Amendment requires—Thomas and Alito invented a new historical doctrine to enable the stripping of citizenship from U.S.-born children, while Kavanaugh retreated to statutory grounds to avoid the constitutional question. The only reason they failed is that Roberts and Barrett refused to join them, retreating to the safety of precedent when the originalist methodology produced an outcome too radical for the institution to absorb.
The children of the Dreamers are citizens today because the Court’s conventional wing held the line against its originalist wing. That assimilation—the absorption of newcomers into the body politic—is a vindication of settled law and institutional stability, not of any supposed originalist orthodoxy. The fact that the dissenters produced three contradictory originalisms is a credit to nothing. It is what the methodology does. The Citizenship Clause is no safer today than it was last week, when a Court with the same composition was asked to take it away. The next case, with different facts and a different alignment of preferences, will produce a different result using the same methodology. Tuesday’s ruling is the rare case where the methodology, applied seriously, produced a result the conservative legal movement did not want. The next time it likely won’t.