The 6-3 majority in Trump v. CASA only addressed universal injunctions (discussed here), but Justice Sotomayor's dissent also addressed the merits of the underlying claim, expressly on textualist and originalist grounds. From the core of her argument:
The Citizenship Clause provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” U. S. Const., Amdt. 14, §1. That means what it says. … Besides birth, there is only one condition: that one be “subject to the jurisdiction” of the United States. Yet that condition too leaves no room for ambiguity. To be “subject to the jurisdiction” of the United States means simply to be bound to its authority and its laws. See N. Webster, An American Dictionary of the English Language 732 (C. Goodrich & N. Porter eds. 1865) (defining jurisdiction as the “[p]ower of governing or legislating,” or “the power or right of exercising authority”). As the Government would presumably concede, virtually everyone born in the United States and present in its territory is subject to its authority and its laws. After all, “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Schooner Exchange v. McFaddon, 7 Cranch 116, 136 (1812) (Marshall, C. J., for the Court). Once a citizen of another nation steps onto United States soil, she is (with narrow exception) “amenable to the jurisdiction” of the United States. Id., at 144. That is why “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” Plyler v. Doe, 457 U. S. 202, 211, n. 10 (1982).
Few constitutional questions can be answered by resort to the text of the Constitution alone, but this is one. The
Fourteenth Amendment guarantees birthright citizenship.
…
Unsurprisingly given the clarity of the Citizenship Clause’s text, every other source of interpretation confirms
this conclusion. Consider, first, its history. Long before the Fourteenth Amendment, and indeed before the founding, the common-law rule of jus soli (literally, right of the soil) governed English citizenship. That rule rendered a person’s birthplace determinative of her citizenship status. Thus, “the children of aliens, born . . . in England,” generally were “natural-born subjects, and entitled to all the privileges of such.” 1 W. Blackstone, Commentaries on the Laws of England 361–362 (1765); see also H. Broom & G. Denman, Constitutional Law Viewed in Relation to Common Law 31 (2d ed. 1885) (describing Calvin’s Case (1608), which established that “[e]very one born within the dominions of the King of England . . . is . . . entitled to enjoy all the rights and liberties of an Englishman”).
That English common-law rule carried over to the United States after the founding. Shortly after the Constitution’s ratification, James Madison observed that “it [was] an established maxim that birth is a criterion of allegiance,” i.e., of citizenship. 1 Annals of Cong. 404 (1789). Birth, he explained, could convey citizenship in two ways: either through “place” (under the “right of the soil” principle) or through “parentage” (as for one born to United States citizens). Ibid. “[B]ut, in general,” Madison explained, “place is the most certain criterion” and “it is what applies in the United States.” Ibid. Mere decades later, Justice Story wrote that “[n]othing is better settled . . . than the doctrine that the children even of aliens born in a country . . . are subjects by birth.” Inglis v. Trustees of Sailor’s Snug Harbour in City of New York, 3 Pet. 99, 164 (1830). Well before the Fourteenth Amendment, then, it was the undisputed “law of the United States [that] every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.” Lynch v. Clarke, 1 Sand. Ch. 583, 663 (N. Y. Ch. 1844).
Though the law was clear, the Nation did not always live up to its promise. Infamously, this Court departed from the birthright citizenship principle in Dred Scott, 19 How. 393, holding that the children of enslaved black Americans “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution.” Id., at 404. Following the Civil War, the Reconstruction Congress corrected that grave error. Section 1 of the Civil Rights Act of 1866, 14 Stat. 27, declared that “all persons born in the United States and not subject to any foreign power” would be “citizens of the United States.” The Fourteenth Amendment’s guarantee of birthright citizenship followed two years later. The lawmakers who ratified the Fourteenth Amendment understood that it would extend citizenship to all children born here, regardless of parental citizenship. Indeed, some objected to its passage on those grounds, complaining that it would permanently extend citizenship to immigrants who “invade [state] borders” and “settle as trespassers.” Cong. Globe, 39th Cong., 1st Sess., 2891 (1866). Proponents agreed, if not with the anti-immigrant sentiment, that the Clause would extend citizenship to the children of immigrants. For example, Senator Conness of California (one of the Amendment’s lead supporters) confirmed on the floor “that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law.” Id., at 2892. “We have declared that by law” in the Civil Rights Act, he explained, and “now it is proposed to incorporate the same provision in the fundamental instrument of the nation.” Id., at 2891. Not one Senator disagreed with this understanding of the Clause.
In the end, “[t]he Citizenship Clause was no legal innovation.” J. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 2d 367, 369 (2006); see also id., at 368 (“Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers”). “It simply restored the longstanding English common law doctrine of jus soli” abrogated by Dred Scott. Ho, 9 Green Bag 2d, at 369; see also M. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L. J. 405, 472 (2020) (The “central purpose” of the Citizenship Clause “was, of course, to overrule Dred Scott”).
…
Following the ratification of the Fourteenth Amendment, this Court confirmed the Amendment’s plain meaning in United States v. Wong Kim Ark, 169 U. S. 649 (1898). At issue was the citizenship of Wong Kim Ark, a young California resident born in San Francisco to Chinese immigrant parents. Id., at 652. When Wong returned to California from a trip to China, a custom’s collector denied him entry on the sole ground that he was not a citizen of the United States. Id., at 653. This Court held that “[t]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory.” Id., at 693. As the President does today, the Government in Wong Kim Ark rested its case on the Clause’s sole qualifier. Wong was not subject to the jurisdiction of the United States, the Government claimed, because at birth his parents were aliens in the United States who were “subjects of the emperor of China,” thus making Wong a subject of the emperor of China as well. Id., at 652–653. This Court squarely rejected that attempt to limit the Citizenship Clause’s reach. Instead, it held, the “‘subject to the jurisdiction’” qualifier excludes only “children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State,” id., at 682, “with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes,” id., at 693.
This all seems right to me, not only as to the result but also as to the reasoning and the specific historical sources used. It's necessarily in somewhat summary form, as it's not the main point of the dissent. More could be said about how children or temporary visitors and of persons not lawfully present in the United States are not meaningfully distinct from lawful resident aliens in being "subject to the jurisdiction" of the United States. (I really doesn't do it from an originalist perspective.) But this passage effectively sets forth the basic argument, as scholars of the clause have understood it.
And, if you think textualist originalism can't yield definite answers to disputed modern issues, or if you think following the original meaning when it's clear isn't required (or is a bad idea for policy reasons), you must think this is all wrong.
Posted at 6:08 AM