The War on Reconstruction
The Supreme Court's 5-4 ruling on birthright citizenship is just one battle in the right's larger war on the Second Founding.
The War on Reconstruction
The Supreme Court's 5-4 ruling on birthright citizenship is just one battle in the right's larger war on the Second Founding.
6 min read
On June 30, 2026, the Supreme Court struck down Donald Trump’s attempt to unilaterally amend the Constitution. The true significance of this decision lies outside the four corners of the Court’s opinion, and is to be found in the principal dissent and the arguments it attempts to deploy. Trump's executive order (EO) and subsequent defenses of that EO by right-wing lawyers, legal scholars, political elites, and Justices Thomas, Alito, Gorsuch, and Kavanaugh, mark a war on Reconstruction.
I. Citizenship in the Antebellum Era
The common law rule held that persons born in Britain were subjects of the King and therefore entitled to his protection. Because the King guaranteed protection to his subjects, they owed a reciprocal duty of allegiance, and with allegiance to the sovereign came citizenship. Despite what some right-wing legal scholars have argued, this presumption governed at the Founding. If you were born on American soil, you became a citizen of the United States, subject to very narrow exceptions.
Of course, states that recognized slavery did not grant citizenship to enslaved people. Rather, they were recognized as property, with no more legal rights than a rocking chair. The political debates that consumed America during the first half of the 19th century were inextricably intertwined with the issue of slavery. For example, in the debates over internal improvements—what we would call “infrastructure” today—slavery shaped the terms because federal funding of infrastructure might portend federal interference with slavery.
19th Century political elites understood that slavery could (and in hindsight, would) tear the United States apart. As the US acquired more territory, first with the Louisiana Purchase and then the Mexican Cession, the issue became even more profound. What would be the status of slavery, and therefore citizenship, in the territories? The Missouri Compromise of 1820, the Compromise of 1850, and the Kansas-Nebraska Act of 1854 sought to answer that crucial question to no avail. Adding to the tension were concerns about immigration and nativism spurred by developments internal to the US, such as slavery, but also external factors such as European migration.
It was in this context that the Supreme Court decided Dred Scott v. Sandford. Readers are likely familiar with the content of Dred Scott. Chief Justice Roger Taney, a Jacksonian Democrat with a long history of support for slavery, held that Black people were “a subordinate and inferior class of beings” who “had no rights which the white man was bound to respect.” As such, Taney continued, Black people whether enslaved or free were not and could never be citizens of the United States.
The framers of the 14th Amendment made clear that its citizenship clause would overrule Dred Scott. In codifying the Civil Rights Act of 1866, the 14th Amendment did just that. The framers feared that the Civil Rights Act might be unconstitutional because of Dred Scott, and so they decided that a formal amendment was necessary. The first clause of the 14th Amendment reads: “All 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.” As the historian Timothy Huebner has argued, the conferral of citizenship on Black Americans was premised on common law principles, Black Christianity, and the aspirations set forth in the Declaration of Independence. All men are created equal, and endowed with inalienable rights, including the right to citizenship.
II. Trump v. Barbara
On January 20, 2025, Donald Trump issued Executive Order 14160. Formally titled “Protecting the Meaning and Value of American Citizenship,” the EO purported to deprive certain children born in the United States of birthright citizenship. The order articulated two circumstances in which children would not be entitled to citizenship: first, when both the mother and father were unlawfully present in the US, and second, when the mother was lawfully but temporarily present and the father was unlawfully present.
Immediately, the EO was challenged in federal court and enjoined by several district courts across the country. In June 2025, the Supreme Court held, 6-3, that so-called nationwide injunctions exceeded the equitable authority of the US district courts. The EO remained in legal limbo as district courts awarded relief to class action plaintiffs. While Trump v. CASA did not address the merits of the EO, the Supreme Court granted certiorari in Trump v. Barbara in December 2025.
On Tuesday, June 30, 2026, the Supreme Court struck down the EO, holding that it violated the Citizenship Clause of the 14th Amendment. The Court was divided 5-4 on the constitutional issue and 6-3 on the unlawfulness of the EO.
The majority opinion, authored by John Roberts, begins with the history of citizenship discussed above, before moving to the merits. The crux of the dispute centered on the phrase “subject to the jurisdiction thereof” in the 14th Amendment. The Trump Administration argued, in essence, that children born to parents who are unlawfully present are not “subject to the jurisdiction” of the US. Roberts disagreed, holding that to be “subject” to the United States’ jurisdiction is to be “under its dominion.”
Put simply, the presumption enshrined in the Constitution is that children of parents present in the US, lawfully or unlawfully, permanently or temporarily, become birthright citizens. The only exception at the time of drafting were children of foreign diplomats and members of Indian tribes.
The 14th Amendment, to paraphrase Hannah Arendt, enshrines the right to have rights. This includes protection of basic liberties and the right “to freely participate in our political community.” By the thinnest of margins, the Supreme Court confirmed this understanding of the Constitution that emerged from the Civil War and Reconstruction.
III. The War on Reconstruction
At bottom, the principal dissent in Barbara is rooted in an ahistorical interpretation of Reconstruction. The Supreme Court and those who have provided fodder for this interpretation are unconcerned with the history. Rather, history is being used as a tool to wage war on the promises of Reconstruction and the Declaration itself.
For Clarence Thomas, the 14th Amendment was only intended to confer citizenship to newly freed Black people because they were both born in the United States and they were domiciled in the country. Because persons unlawfully or temporarily present are not “domiciled” in the United States, they are not entitled to birthright citizenship under the original public meaning of the clause. Instead, according to Thomas, such persons are domiciled in their home country. Thomas is correct that Reconstruction was focused on realizing basic equality for African Americans. But that basic equality was meant to extend much further than Thomas acknowledges. The problem with his argument is that it’s completely ahistorical.
It must be said that Thomas alone likely could not have written his dissent without the aid of an elite clique of right-wing law professors. The work of these academics has been, in my view, thoroughly debunked by more serious scholarship.
The Trump Administration knew that the EO was unconstitutional under current law. The best way to think about the EO is to think of it as an attempt to move the Overton Window. It was an attempt to use the Constitution (and the Supreme Court) to accomplish the racist, partisan goal of stripping citizenship from large swaths of people. It is ironic, then, that the attempt to “protect” the value of citizenship looks frighteningly close to the justifications of slave owners in antebellum America. The core idea is that some are deserving of citizenship, and some are not.
Because of this case and its narrow majority, the Overton Window has been shifted. Taking cues from Brett Kavanaugh’s opinion in Barbara, Republican political elites are floating the idea of doing away with birthright citizenship by statute. One right-wing commentator argued that the US should “require sterilization of all foreign visitors prior to entry.” Another has recommended that we “use whatever force is necessary” to “round every illegal up,” with an implicit reference to the murder of Renee Nicole Good as such a necessary consequence.
Aside from the blatant racism of these “recommendations,” it is clear that right-wing reactionaries will not be deterred by the Court’s decision. To be clear, I am not attributing these views to the legal scholars who defended Trump’s EO. But I am saying that they lent a thin patina of scholarly legitimacy to this project.
Perhaps it is best to view Trump v. Barbara as a battle in a much larger war. This time, the true meaning of Reconstruction and the “Second Founding” won by the narrowest of margins. Another goal of Reconstruction—protection of voting rights—is under attack from the right. Those battles have been lost up to this point.
The debates over the “colorblind” Constitution are yet another example. As Ketanji Brown-Jackson noted in her Barbara concurrence, it is interesting that Thomas sees birthright citizenship as a “race-conscious remedial measure,” despite being the foremost advocate of colorblindness. It is even more interesting that Thomas’s (and the other dissenters’) interpretation just happens to match up to that of the Trump Administration. It is ironic, then, that Thomas criticizes the majority for “repurpose[ing]” the 14th Amendment “for political projects.” Perhaps he—and others—should heed their own words. Theirs is the jurisprudence of the slave power, and all its attendant brutality.
Featured image is "Dred Scott and Harriet Scott wood engravings after photographs by Fitzgibbon," 1857.
