Birthright Citizenship and the Politics of Constitutional Law (Part III)

Guest Blogger

Pranjal Drall and Samuel Moyn

Our first two posts have analyzed how marginal legal positions are politically mainstreamed and surveyed that normalizing process in the great case on birthright citizenship, Trump v. Barbara, so far.

Before long, even those who thought the government’s position was laughable or dishonest end up arguing over the “true” meaning of the 1866 Civil Rights Act, whether it is appropriate to use private letters, and whether the holding in Wong Kim Ark included a domicile requirement. The open rage and the strategic awareness, visible on social media, are filtered out by the time the arguments reach the merits stage. Of course, they are professionally impermissible in oral argument. That is what legalism, pretending the law already resolved the dispute even as it is being pushed somewhere new, requires.

The benefits of liberal and left engagement in this manner are unclear, and their downsides stark. We seem to forget that the revisionists do not need to win the argument cleanly. They just need the argument to be plausible and liberals, by responding to the argument on legalist and originalist terms, make it easy for the Supreme Court to treat it as an open question.

The NFIB experience might have taught liberals that ridicule and disbelief are not winning strategies. The individual mandate challenge did not succeed or fail based on the quality of legal argument. It turned on political dynamics that determined which readings of the Commerce Clause were conceivable and credible. If that is also true for the Citizenship Clause, then academics ought to openly discuss whether it makes sense to engage on originalist terms at all, whether to call out the revisionism as a political project rather than a scholarly one, and whether to attack the good faith of the elite legal actors on the other side pretending otherwise.

Those are strategic judgments with difficult tradeoffs. The normalization of your enemy’s argument might happen anyway, and it could shift the right left as much as it shifts the Constitution right. And perhaps this mode of engagement is strategically necessary because current judges ultimately need to be supplied “originalist” arguments for birthright citizenship. But treating routine engagement on the merits as the only option, without even acknowledging the choice, is the mistake liberals made in NFIB and are making it again here, even if this particular mainstreaming effort is likely to fail. Doing so requires collusion on interpretive method, which moves our jurisprudence to the right, and may be extremely ill-advised if it obscures other options that are far less costly or more viable or both.

In NFIB v. Sebelius, liberals could claim a mixed victory at best. The individual mandate of Obamacare was saved, but only at the price of cutting the Medicaid benefits of millions that Congress had enacted for them. The decision further eroded the expansive authority the Commerce Clause had once consensually provided Congressional legislation.

More important, the die is very likely going to be cast by disagreement among conservatives. The justices may choose to not even reach the constitutional scope of birthright citizenship—since it is both easier and equally open to them in Trump v. Barbara to hold the Executive Order in violation of legislative command. If they do address the constitutional issue and reaffirm birthright citizenship, it is not going to be because Trump’s supporters simply failed to find convincing enough legal arguments. Instead, it will be that propitious enough circumstances did not come together to allow the interpretive shift they advocate.

Even Barnett acknowledged as much after watching Chuck Cooper, founder of Cooper & Kirk and “eminent conservative lawyer,” testify in support of the challenge to a House Subcommittee: “Has the intellectual challenge to the contemporary ‘conventional wisdom’ about ‘birthright citizenship’ been mounted too late to prevail at the Supreme Court?” It is equally possible that there was too much time by the moment the battle was finally joined. After its frightening first year, the second term of Trump’s presidency looks like a spent force. No one should have ever thought that the Supreme Court was “in the bag” for Trump. It was closer to the other way around. Since January 2025, far from playing out a strategy of placating a tyrant or saving risky pushback for later and more momentous issues, the court’s majority got to fulfill its own plans for empowering the president as the chief executive thanks to the opportunities Trump provided it. By comparison, the erosion of birthright citizenship has never been a priority for any of the current conservative justices, and they may be looking for opportunities to distance on themselves from Trump on such issues.

Thus, even the anticipated victory in Trump v. Barbara for an expansive conception of birthright citizenship, if it happens, is not going to be due to liberal self-involvement in the dynamics that lead to it. The best predictor of the Supreme Court’s decision-making in a case such as this, is not whether liberal lawyers prove convincing but where conservative politics is at. If lawyers continue to run victory laps for the rule of law when the Supreme Court stops Trump on birthright citizenship or the Federal Reserve, as it has already done on his assertion of tariff authority, they will have mistaken the Court’s continuing strategy of self-aggrandizement for the success of legalism.

It is striking, in this context, that liberals have forsaken the cause of arguing for birthright citizenship politically and in principle. This failure is all the more stunning in a global environment in which immigration backlash will continue to be salient in future years and in which citizenship based on blood rather than soil continues to be a dominant policy choice across the world.

The political opposition to Trump has done an excellent job eroding the support Trump thought his second election provided for aggressive immigration enforcement—to the point that leading Republicans are rethinking it. But when it comes to establishing political support for birthright citizenship, however, we have done little besides validating the originalism that will continue to have dreadful consequences in other areas of law.

Maybe the Framers of the Fourteenth Amendment believed in birthright citizenship without further exceptions. Maybe the Supreme Court will agree they did. Even if so, it won’t provide much reason to think that liberals have learned the right lessons about how their current political strategies are working. This is not the first time, and it will not be the last, that conservative originalists could not agree on what policies to project onto the Framers. Their disagreement may matter far more than the fact that liberals stooped to adopt their interpretive methods for the sake of a win. And it will not save liberals the trouble of earning a political victory.

Pranjal Drall is a J.D./Ph.D. student at Yale University. Samuel Moyn, Kent Professor of Law and History there, is author of “Gerontocracy in America: How the Old Are Hoarding Power and Wealth—and What to Do About It.”