By John Q. Hosedrinker 
During Supreme Court arguments regarding birthright citizenship, a majority of justices expressed strong skepticism towards President Trump’s executive order. Justice Amy Coney Barrett’s questioning of Solicitor General John Sauer, particularly concerning his theory of “domicile” and “allegiance,” appeared to seal the administration’s loss. Barrett highlighted the historical context of the 14th Amendment, questioning how Sauer’s theory could reconcile with granting citizenship to formerly enslaved people, whose circumstances did not align with notions of voluntary domicile. Ultimately, the exchange suggested that the justices favored a simpler, “jus soli” approach to citizenship, based on place of birth, over the complex familial and allegiances proposed by the government.
Read the original article here
The argument against birthright citizenship, which hinges on the idea that parents must have a settled domicile and allegiance to the United States for their children born here to be citizens, faced a significant challenge through a single, potent question. This line of reasoning, promoted by those seeking to alter the established understanding of the 14th Amendment, essentially proposed that children born in the U.S. to parents lacking these specific qualifications would not automatically be granted citizenship. The implications of this theory were far-reaching, aiming to redefine who qualifies as an American citizen based on their parents’ perceived intentions and allegiances.
The solicitor general, tasked with defending this position, repeatedly emphasized that the primary aim of the 14th Amendment’s citizenship clause was to overturn the discriminatory Dred Scott decision and ensure citizenship for newly freed slaves and their descendants. This historical context was presented as the cornerstone of the argument, suggesting that the amendment’s scope was narrowly tailored to address this specific post-Civil War injustice. The idea was that the amendment was intended to solidify the status of those who had been denied their rights and were now establishing a permanent life in the United States.
However, the critical question posed effectively turned this very historical foundation on its head. It pointed out the inherent contradiction in a theory that seeks to grant citizenship to formerly enslaved people if, by its own logic, those same individuals might have been excluded. The question highlighted that many enslaved people were brought to this country against their will, meaning they likely did not possess a voluntary domicile or a natural allegiance to the United States. Instead, their primary allegiance and desire for return would have been to their homelands, from which they were forcibly removed.
By applying the same exclusionary criteria – lack of domicile and foreign allegiance – to enslaved people, the argument against birthright citizenship would logically exclude the very group the 14th Amendment was purportedly designed to protect. If enslaved individuals, brought to America involuntarily, could have their children denied citizenship based on their lack of “domicile” or perceived “allegiance” to their former homes, then the entire premise of the solicitor general’s argument collapses. It revealed that the proposed restrictive interpretation of the 14th Amendment was not only flawed in its historical application but also internally inconsistent.
The probing question essentially forced a re-examination of the solicitor general’s theory by highlighting how it would disqualify the descendants of those most directly affected by the amendment’s passage. It raised the uncomfortable prospect that if the government’s current interpretation were accepted, it would imply that the children of enslaved people, who were brought to this country under the most unjust circumstances, might not have been entitled to citizenship. This paradox underscored the weakness of the argument that the amendment was exclusively about securing citizenship for freed slaves if the proposed criteria would retroactively disbar them.
Furthermore, the question implicitly probed the practical and ethical implications of attempting to ascertain an individual’s “domicile” or “allegiance.” How could such subjective and potentially intrusive determinations be made, especially in the context of people trafficked or brought to the country under duress? The difficulty in defining and measuring these internal states raises significant concerns about the fairness and feasibility of any policy that relies on such criteria for determining citizenship.
The effectiveness of this single question lay in its ability to expose the logical inconsistencies and historical ironies embedded within the argument against birthright citizenship. It leveraged the very historical precedent used to support the restrictive view to demonstrate its ultimate undoing. By drawing a parallel between the proposed exclusion of modern immigrants based on perceived domicile and allegiance, and the potential exclusion of enslaved people under the same logic, the question revealed the deeply problematic nature of the argument. It underscored that the 14th Amendment’s intention was broader and more inclusive than the narrow interpretation being presented.