On Wednesday, April 1, 2026, the Supreme Court will hear oral argument in Trump v. Barbara. Much of the debate about the clause has focused on the original meaning of the first Clause of Section One of the Fourteenth Amendment:
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.
Some of the Justices may focus on the Original Public Meaning of the Clause. Here are six thoughts about their task.
First Thought: Party Presentation Has Focused on the Original Meaning of the Clause
Sometimes, the Supreme Court decides a constitutional question on the basis of nonoriginalist precedent because the parties have not raised originalist arguments, but that is not the case here. Instead, the parties have made originalist arguments and cited the scholarly literature. Of course, it simply isn’t possible for either the briefs or oral argument to explore all of the most important evidence of original meaning, but originalists should not understand the party presentation principle to require the Justices to limit their judgments about the original meaning of the clause to statements quoted in the party’s briefs: raising the constitutional issue satisfies the Party Presentation Principle—as Randy Barnett and I have argued in “Making the Party Presentation Principle Safe for Originalism” Both the Citizenship Clause and its original meaning have been raised by the parties.
Second Thought: The Justices Must Decide Whether “Subject to the Jurisdiction Thereof” Has an Ordinary Meaning or a Technical Meaning
One of the central ideas of Public Meaning Originalism is that the original meaning of the constitutional text is its original public meaning—a meaning that is either understood by or accessible to the public, ordinary citizens. But the Constitution sometimes uses technical language, phrases like “Letters of Marque and Reprisal.” Was “subject to the jurisdiction thereof” a technical phrase, the meaning of which depended on the common law of natural born subjects in England? Or was the phrase intended to have an ordinary meaning, based on the way that ordinary citizens would understand “subject to the jurisdiction”? From an originalist perspective, the key question is this: “Would citizens in 1868 have understood the phrase as technical language or would they have understood the phrase to have ordinary meaning?” Public Meaning Originalism embraces technical meaning, but only when that meaning is accessible to the public. Secret technical meaning is antithetical to the notion that the Constitution was a public document, written for the people, and intended to have a meaning that was access to us, that is to “We the People.”
Third Thought: The Justices and their Clerks Should Read the Most Important Scholarship and Original Sources
If you have been following the debate over the meaning of the birthright citizenship clause carefully, you know that there has been an outpouring of scholarship on both sides. Although the briefs are helpful, they cannot fully assess the evidence surfaced by originalist scholars. Supreme Court Justices are very busy indeed, but I imagine that the originalist Justices will be reading the parties’ briefs and the most important scholarship over the weekend and early next week. If it were me, I would want (at a minimum) to read the exchange between Michael Ramsey and Kurt Lash very carefully. They have both made major statements (Ramsey, Lash) and have followed up with replies to each other (Ramsey, Lash). Of course, there are many other scholars who have done important work: I apologize to them for this very short “short list.” After the originalism-friendly Justices read the scholarship they think is important, they may also want to look at some of the original sources and contextualize the most important quotations used by the parties and scholars. If the Justices want to get the original meaning right, it would be a grave error to rely on the briefs for a full presentation of the relevant evidence.
Fourth Thought: The Scholarly Debate Is Mature and the Justices Should Not Avoid Making Judgments About Original Meaning On Epistemic Grounds
Sometimes originalism is easy because the constitutional text is clear and the original meaning and due diligence can be done in a matter of hours. But sometimes constitutional language is obscure in the eyes of modern readers, and substantially more effort (weeks or months of research) may be required to uncover the conceptual world of the relevant era and to identify the important primary sources. If the work hasn’t been done, then the Justices may hesitate to render a premature verdict on original meaning on epistemic grounds, thinking “We don’t yet have enough confidence to render a judgment that might turn out to be incorrect.” But that is not the case with respect to the Citizenship Clause. Indeed, originalism owes a debt of gratitude to the scholars who have challenged the conventional wisdom. As a result of their work, the arguments and evidence are now on the table and the Justices are in a position to make confident judgments about the original meaning of the Citizenship Clause. The epistemic threshold for high quality originalism has been met. If the Court adopts the conventional wisdom, it will not be because the other side had never even been considered. If the Court upends the conventional wisdom, it will not be on the basis of new scholarship that never was vetted by the other side.
Fifth Thought: The Court Should Think Carefully Before Taking the Statutory Offramp
There is a possible statutory offramp in Trump v. Barbara. The Court might decide the case on the basis of a federal statutory provision with language that parallels the constitutional text but was enacted in 1952 (8 USC §1401(a)). It has been argued that the meaning of the statute was fixed in that year and that the current conventional wisdom about “subject to the jurisdiction thereof” was the predominant understanding of that phrase at the time of enactment and promulgation. Of course, originalists accept the Fixation Thesis (which is sometimes expressed as the Fixity Canon), but that does not settle the question. Why not? Because the reenactment of old language raises a question about the second-order communicative intentions of the Congress that did the enacting. Congress might have had a second-order communicative intention to adopt the communicative content of the Fourteenth Amendment—to leave it unchanged. Or Congress might have wanted to convey the meaning as it would have been understood at the date of enactment—and hence to change the meaning if there had been linguistic drift. This is a tricky issue, and the Court must resolve it if the Court decides it wants to take the offramp.
Sixth Thought: Resolving the Debate About the Meaning of the Citizenship Clause Involves Inference to the Best Explanation
There is a debate about the meaning of the Citizenship Clause, and that debate is all about the evidence. The scholarly debate over the evidence focuses on questions about relevance and probative value. Some evidence may not even be relevant. The probative value of other evidence depends on its relationship to the context of constitutional communication and to all of the other evidence. The Justices need to consider all of the evidence and then answer this question: “Which theory of the meaning of ‘subject to the jurisdiction thereof’ best accounts for all of the evidence?” Inference to the best explanation is holistic: it is not a matter of deduction from first principles. For this reason, it is vitally important that the Justices have a good working knowledge of the evidence itself and the arguments about its relevance and probative value when they enter the Courtroom on Wednesday morning. And if we are lucky, they will leave in even better epistemic shape. Fingers crossed.