Indian citizens stand informed now that even the Indian passport is merely a “travel document” and not any evidence of Indian citizenship, and yet, no document exists so recognized by the Indian State—the onus of proof of Indian citizenship is slowly but surely being made very difficult in India.
Most recently, the affirmation of birthright citizenship by the Supreme Court of the United States (SCOTUS) arrives as a <a href="https://absafricatv.com/bangladesh-set-to-gain-from-global-economic-recovery/” title=”Bangladesh set to gain from global economic recovery”>global healing touch against all policies and practices of ethno-exclusion and discrimination, which can be aptly termed as a second coming of global Social Darwinism.
The 14th Amendment of the US Constitution (adopted as far back as July 28, 1868) clearly decreed 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”.
However, a very determined incumbent, the President of the United States (POTUS), Donald Trump, decreed otherwise. By Executive Order No 14160, dated January 20, 2025 (entitled Protecting the Meaning and Value of American Citizenship), the POTUS provided that children born in the United States to parents who are unlawfully or temporarily present there are not “subject to the jurisdiction” of the United States—thus rendering many thousands ineligible for citizenship under that Amendment or the Immigration and Nationality Act (INA), which uses the very same language.
WHO WAS THE PLAINTIFF-PETITIONER?
My ongoing research into individual and social biography is thwarted by the fact that Barbara, however, is the pseudonym of a Honduran immigrant and the representative plaintiff in this landmark Supreme Court case (affirming the decision of the District Court of Hampshire).
The District Court echoed a vital thesis of the great political philosopher Hannah Arendt, who observed that: “Citizenship, then and now, was the right to have rights—to freely participate in our political community” (emphasis added). The majority opinion held that the framers of the Fourteenth Amendment extended that promise to “every free-born person in this land” and that “we uphold that promise today”.
THE ARGUMENTATIVE STRATEGIES
The US Solicitor General, D John Sauer, in effect argued that the Citizenship Clause has historically been misunderstood and that the phrase “subject to the jurisdiction thereof” entails more than being born on American soil, extending citizenship only to children whose parents have fully proven “the type of permanent allegiance or lawful domicile that places them fully within the political jurisdiction of the United States”.
The respondents, represented by Cecillia Wang, National Legal Director of the American Civil Liberties Union (ACLU), on the other hand, maintained that the Executive Order not merely “conflicted with the text of the Fourteenth Amendment”, but was “contrary to longstanding interpretation of the Citizenship Clause” and in direct opposition to the Supreme Court’s 1898 decision in United States vs Wong Kim Ark.
Ark was born in San Francisco to Chinese parents who were long-term domiciled residents of the United States but were themselves ineligible to become naturalized US citizens under federal law. When disallowed re-entry on the ground that he was not a US citizen, he pursued proceedings up to the SCOTUS, which finally held that he acquired citizenship by birth under the Fourteenth Amendment because he had been born in the United States.
Additionally, it was contended that the Citizenship Clause establishes a “straightforward constitutional rule”: individuals born in the United States are citizens unless they fall within a small number of historically recognized exceptions, namely children born to diplomats, occupying military forces or, formerly, certain categories of “Native Americans”.
MUCH JUDICIAL BLOODLETTING AND INTERNAL DISSENT
The decision is hailed by many as a “vital victory for the children and communities that would have been hurt”. And so it is, even when the SCOTUS opinion was deeply divided, witnessing much internal dissent and even judicial bloodletting.
The majority opinion by Chief Justice John G Roberts, Jr (joined by Justices Elena Kagan, Brett M Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson) held that the “children born of parents unlawfully or temporarily present in the United States” satisfy both elements of the Citizenship Clause under the Constitution. He concluded: “They are citizens at birth.”
Justice Jackson wrote a concurring opinion, which Justice Sotomayor joined (the introduction and Part I). Justice Kavanaugh concurred partly in the judgment and dissented in part. Justice Clarence Thomas wrote a dissenting opinion, joined by Justices Neil M Gorsuch. He and Samuel A Alito, Jr also wrote separate opinions.
Notably, as many as four justices declined to subscribe to the chief justice’s constitutional ruling on this vital matter of constitutional first principle, though one nowadays expects this from the Court’s conservative supermajority.
The dissenting justices engaged in what the chief justice called “revisionist” history to create constitutional complexity out of thin air and went even further to suggest that the birthright guarantee is, after all, limited to a chosen few.
No doubt, Justice Kavanaugh’s concurrence, as some judicious commentators put it, offers a “road map for a right-wing Congress to complete Trump’s failed job”. It is also “an unsettling reminder” of the infamous SCOTUS decision in Dred Scott (1857), which held that African-Americans, whether enslaved or free, were not US citizens, and therefore, had “no right to sue in federal courts”.
In a robust dissenting opinion, Justice Alito called the ruling simultaneously “one of the most important decisions in the history of the Court” and “a serious mistake”. He wrote that a careful “analysis of the text of the Fourteenth Amendment and the process that led to its adoption” reveals that it does not “degrade the concept of United States citizenship in this way”. Instead, he maintained that the Fourteenth Amendment confers citizenship on “only those children who, at birth, owe allegiance solely to this country”.
REAFFIRMING PRECEDENT
The SCOTUS then reaffirmed the principle firmly articulated in 1898 in the case of Wong Kim Ark. Chief Justice Roberts stressed that “the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States.” Not surprisingly, then, in the 128 years since, the Court has repeatedly understood that rule “to guarantee citizenship to all children born in the United States and subject to its power”.
The chief justice rejected the government’s argument that, even if birthright citizenship was the norm in early US history, by the time the Fourteenth Amendment was enacted, the decisive question had become whether a child owed “primary allegiance” to the United States, which in turn, depended upon “domicile”.
He observed, at the very threshold, that “there is scant evidence for this dramatically revisionist view”. But in any event, he added, if Congress “intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design.”
THE PRESIDENT’S EXECUTIVE ORDER IS INVALID
Justice Kavanaugh agreed with the result that the Court reached—that the President’s Executive Order is invalid—but not with its reasoning.
In his view, Trump’s order “does not violate the Fourteenth Amendment”, but does violate a federal law providing that children “born in the United States, and subject to the jurisdiction thereof” are US citizens.
Congress, he held, “could amend” that law or otherwise enact legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But he was painstaking in noting that Congress “has not yet done so”.
THE DISSENT ON THE “SAD HISTORY” OF THE FOURTEENTH AMENDMENT
Justice Thomas penned a lengthy dissent, joined by Justice Gorsuch. He called the majority’s account “not historically accurate” and said that it adds to the “sad history of the Fourteenth Amendment”, which was designed and understood to secure equal rights for freed Black Americans, but has instead, in his view, been “repurposed for political projects that the Reconstruction Congress did not support”.
Justice Gorsuch also wrote a separate brief dissent, suggesting that Trump’s Executive Order might violate the Constitution as applied to children of undocumented immigrants intending to live permanently in the United States.
“If those parents are not domiciled here,” he asked, “then where are they domiciled?” And if “the answer is nowhere”, he continued, “how can we reconcile that conclusion with this Court’s longstanding recognition that every person is domiciled somewhere?”
Because the challengers argued that Trump’s order was invalid in all circumstances rather than only some, Justice Gorsuch explained that “these questions may not be properly before us.” But their answers, he added, remain undeniably important to “a Nation committed to a view of citizenship open to all children born here to parents who can call this country their home.”
THE ARC OF JUSTICE AND PULL-OR-PUSH JURISPRUDENCE
As Daniel I Weiner and Joanna Zdanys wrote (July 1, 2026): “In Barbara, the Constitution won out. But the bigger pattern is clear: members of this court’s conservative supermajority have made it their job to bend the arc of the moral universe toward injustice.”
Cognoscenti will, however, recall Martin Luther King Jr’s immortal statement: “The arc of the moral universe is long, but it bends towards justice.” Yet, as Representative Shontel Brown wrote, the arc “does not bend towards justice” on its own; “it only does so because people pull it towards justice. It is an active exercise, not a passive one”.
It was but right that this push and pull ultimately repelled the Executive Order and restored the majestic sweep of the Fourteenth Amendment’s law and jurisprudence.
There is a globally pertinent message in the majority opinion: the universal human right to belong to a political community—whether by birth or domicile, what Hannah Arendt also christened the “right to nativity”—is too important to be left entirely to partisan political practices by “little men dressed in brief authority”, to evoke Hamlet.
—The writer is Emeritus Professor of Law, Warwick and Delhi University
