This Legal Theory Blog post examines the role that originalism plays in the opinions in Trump v. Barbara. What does today’s decision tell us about the role that originalism is playing on the Supreme Court? That question has several dimensions. One dimension is theoretical: does the reasoning of the Justices indicate a commitment to the originalist idea that the original public meaning of the constitutional text is binding? Or is the opinion instead an example of constitutional pluralism that treats text (and hence the original public meaning of the text) as one of multiple modalities of constitutional argument—along with precedent, historical practice, and perhaps others? A second dimension is methodological: does the opinion (whether originalist or pluralist in theory) employ adequate originalist methodology, analyzing the meaning (semantic content) of the text as disambiguated by context, taking all the evidence into account, and addressing the originalist scholarship?
These two dimensions are independent. An opinion can be pluralist in theory and still do excellent originalist work on its textual modality; an opinion can claim the originalist mantle and do the work poorly, or selectively.
One more thing: this post does not take a stand on the substance of the original public meaning question. Some readers may be disappointed in my failure to reach a conclusion about which side was correct in its originalist analysis. But opining on that question would be a breach of my duty of epistemic responsibility. I am generally familiar with the secondary literature, but I have not read all of that and I have only read a smattering of the primary sources. As readers undoubtedly know, some very strong opinions have been expressed on these questions but in my view many of these opinions are quite obviously being put forth by scholars who have not even read the secondary literature with care. No serious scholar should be expressing a scholarly judgment about the merits of the birthright citizenship question if they haven’t done at least a moderately deep dive into the primary sources. Of course, we can express opinions based on incomplete evidence, but those are just opinions and should be identified as not fully informed.
In Trump v. Barbara, decided yesterday, June 30, the Court held that children born in the United States to parents who are unlawfully or temporarily present are subject to the jurisdiction of the United States and are therefore citizens at birth under the Citizenship Clause of the Fourteenth Amendment. There were two questions, one constitutional and the other statutory. On the constitutional question the Court split five to four: Chief Justice Roberts wrote for himself, Justice Sotomayor, Justice Kagan, Justice Barrett, and Justice Jackson. On the statutory question, Justice Kavanaugh alone concluded that the statute but not the constitution supported the outcome. So, the bottom line was a 6-3 split.
The constitutional question in Barbara can be approached from an originalist perspective. Simplifying, there were two readings of the Clause: a broad reading that supported the majority’s decision and a narrow reading reflected in Justice Thomas’s dissent. By the time the case was argued, there was a substantial body of originalist scholarship, some from before the executive order was issued but much more that appeared very recently.
The narrow reading—that the Clause withholds citizenship from the children of those not lawfully and permanently present—had been defended on originalist grounds by Kurt Lash and Ilan Wurman, who argued, for different reasons and with different theories, that the phrase “subject to the jurisdiction thereof” demanded an allegiance or domicile that temporary and unlawful presence could not supply. The broad reading—that the Clause reaches nearly all children born on American soil—had been defended on equally originalist grounds, and by Michael Ramsey, by Keith Whittington (with James Heilpern as coauthor on the linguistic question), by James Ho in an essay written years before the controversy was politically live, and by Akhil and Vikram Amar. There is other scholarship, but I am focusing here on originalist scholarship by originalists. At the level of the scholarship, then, there was a contest among originalists.
This post has three parts: (1) I analyze the opinions and/or votes of each Justice for what they reveal about the Justice’s orientation towards originalism; (2) I then produce a tally that summarizes that analysis; and (3) I reflect on the implications of Barbara for a broader question about the role of originalism on the Supreme Court.
Chief Justice Roberts
The two dimensions I have distinguished give us two questions to ask of the Chief Justice’s opinion for the Court. Is the opinion originalist in theory, or is it an exercise in constitutional pluralism? And whichever it is, does it employ an adequate originalist methodology?
Take the theoretical question first. An originalist opinion, in the strict sense, rests the decision on the recovered original meaning of the text and treats other modalities (e.g., historical practice and precedent) as evidence of original meaning but not as independent sources of constitutional meaning. The Chief Justice wrote a constitutional pluralist opinion. His opinion rests on the convergence of four modalities, each developed and each pointing the same way, and it is built so that the result could stand even if any one of them were contested. The first modality is text. Roberts adopts an originalist approach to the textualist modality, and a substantial portion of his opinion develops an originalist argument. The opinion offers a theory of “subject to the jurisdiction thereof”: to be subject to the jurisdiction of the United States is to be subject to its power to govern those within its territory—the “full and complete power . . . within its own territories” of Chief Justice Marshall’s Schooner Exchange, subject only to the narrow exceptions, chiefly for foreign ministers, in which exercising that power would degrade the dignity of a foreign sovereign. And the opinion develops that theory on two tracks it is careful to separate: the common law, traced from Calvin’s Case and Blackstone through reception in the early Republic and statement in the antebellum authorities; and then—“even putting the common law to one side”—the historical-linguistic evidence proper, the founding-era and Reconstruction-era dictionaries of Webster, Worcester, and Abbott, and the settled legal usage fixed by Schooner Exchange, under which private persons who travel to a country for business or caprice are amenable to its jurisdiction.
But the opinion does not stop with the text, and that is what makes it pluralist. It adds a second modality, post-ratification practice: for nearly two decades after ratification the Executive Branch and the lower courts treated the Clause as an affirmance of the common law—Secretary Fish’s 1871 memorandum, Attorney General Williams’s 1872 recognition of a child born to temporarily resident Austrian parents, and the decisions in McKay, Look Tin Sing, and Chin King—with the contrary practice after 1884 dismissed as a later development, born of Chinese-exclusion politics and the Wharton-Morse international-law theory, that came too late to bear on meaning. It adds a third modality, precedent: Wong Kim Ark, read both as evidence of original meaning (the 1898 Court’s reading of the Clause as declaratory of the common law) and as binding authority confirmed by more than a century of consistent application in Hintopoulos and Rios-Pineda, with Slaughter-House in support for the point that residence attaches to state and not national citizenship. The common law, which I have grouped with the text, in fact does work of its own as a fourth strand, supplying the background rule against which the words were chosen. Four modalities, developed and convergent: that is the structure of a pluralist opinion, not an originalist one. Originalism proper would have rested on the dictionaries and Schooner Exchange and treated the rest as makeweight. The Chief Justice instead offers the linguistic argument as an alternative ground—reaching the result “even putting the common law to one side”—and then declines to let it stand alone, precisely because he does not need it to.
Now the methodological question, which is independent of the first. Pluralist though the opinion is, does it apply an adequate originalist methodology. The Chief Justice’s opinion engages in a substantial amount of historical linguistic work that aims to recover the original public meaning of the Clause, including dictionaries and Schooner Exchange. Moreover, Roberts does not rest on expected applications: “postenactment history cannot override the text,” and the observation that the Executive Order’s operative words—“mother,” “father,” “lawful,” “temporary”—are absent from the Clause is an argument about communicative content, not about what the ratifiers anticipated. And it assigns Wong Kim Ark its evidentiary and its precedential roles openly, rather than letting the citation do one kind of work under cover of the other.
However, from a methodological perspective, Roberts opinion does not fare well when it comes to engagement with the contemporary scholarship is nearly absent. The Chief Justice confronts the revisionist theory at its source, in Wharton and Morse, but he cites neither Lash nor Wurman on one side nor Ramsey, Whittington, Ho, or the Amars on the other. He does the work himself rather than borrowing it. That is no vice on its own—an opinion that recovers the meaning directly from the period evidence owes no one a citation, and adequate originalist methodology does not require a literature review. But it means the majority wins the historical-linguistic argument without engaging the originalists who reached the same result, which becomes significant only by contrast: the dissents, as we will see, engaged the scholarship on their own side while passing over the originalist work against them.
The failure to engage with the scholarship has an important implication for assessing Roberts’s opinion. Fully taking into account the arguments made in the originalist scholarship would have produced a richer and more complete analysis of the primary sources. Perhaps, I should mention that Chief Justice Roberts has been sharply critical of legal scholarship in general. And for this reason, it does not come as a surprise that his opinion does not engage with the originalist scholarship in a deep way.
Justice Thomas
Justice Thomas’s dissent, joined by Justice Gorsuch, is the principal dissent and the case’s most ambitious piece of original-meaning analysis on the losing side. On the theoretical question, Justice Thomas comes closer than anyone on the Court to writing an originalist opinion in the strict sense: the original meaning of “subject to the jurisdiction thereof” is offered as the decisive ground, and the other modalities are marshaled in its service rather than allowed to carry independent weight. On the methodological question, however, the opinion is more vulnerable than its length and apparatus suggest—both in how it locates the meaning and in which scholarship it consents to engage.
Begin with the theory it offers. Justice Thomas reads “subject to the jurisdiction” as including a domicile. A person is subject to the jurisdiction of the government of his domicile—his legal home—and the government of one’s domicile holds the broad authority over person and conduct that the phrase invokes. Temporary visitors remain domiciled abroad and so remain subject to a foreign power; their children, born here but domiciled elsewhere by the rule that children follow the parents’ domicile, are not subject to the jurisdiction of the United States in the relevant sense. On this reading the Civil Rights Act’s “not subject to any foreign power” and the Clause’s “subject to the jurisdiction thereof” express the same idea, and the Reconstruction Congress meant to confer citizenship on the freedmen—who had no other home and owed allegiance to no other sovereign—without extending it to the children of those whose home was elsewhere.
The opinion supports this theory with a sheer volume of period evidence, the equal of the majority’s. Justice Thomas works the early national-character and domicile cases—The Venus, The Pizarro, Barber v. Barber—the Koszta correspondence and the conscription debates, Tucker and Twiss and the state-citizenship authorities, and the congressional debates read for the distinction between settlers and “temporary sojourners.” If the question is whether Justice Thomas treats original meaning as binding and decisive, the answer is yes. So, on the theoretical dimension, Justice Thomas is clearly an originalist and not a constitutional pluralist.
The methodological question is more complex. For all its apparatus, the dissent locates the meaning of the operative constitutional phrase largely by way of two substitutes for direct work on the words. It leans heavily on the antecedent law—the domicile rules of national character developed for wholly different purposes, prize and conscription and diversity jurisdiction—and on the text of the Civil Rights Act, reasoning from “not subject to any foreign power” to “subject to the jurisdiction thereof” rather than from the latter phrase itself. The majority’s sharpest observation is that when the dissent turns to the operative words of the Clause, it has comparatively little to say: it argues that a person is subject to the jurisdiction of the government of his domicile, which is true but does not answer the question, since a person physically present in a country is also subject to that country’s jurisdiction, domicile or no. The domicile cases establish that domicile confers a national character for some purposes; they do not establish that “jurisdiction” in the Citizenship Clause meant domicile. That inferential gap is a methodological soft spot.
Another methodological question arises from Thomas’s treatment of Wong Kim Ark. Justice Thomas narrows the decision to its facts: Wong’s parents were domiciled in the United States, the Court said so repeatedly, and the holding therefore reaches only the children of the domiciled. This is a respectable lawyer’s reading of the case, and it is not foreclosed by the opinion’s language. But it sits uneasily with the dissent’s own theoretical posture. If original meaning is binding and the meaning is domicile, then Wong Kim Ark’s extended reasoning—its canvass of the common law and its adoption of the Schooner Exchange sense of “jurisdiction”—is either right or wrong on the merits, and the dissent should meet it on the merits rather than confine it to its facts. Reading a precedent narrowly is a precedent-modality move; it is what one does when one cannot defeat the reasoning and must limit the holding. Its presence in an otherwise originalist opinion is a tell that the original-meaning argument is doing less of the work than the opinion’s self-presentation suggests.
On the scholarly dimension, Justice Thomas’s engagement is real but one-sided. He engages the originalist scholarship that supports the narrow reading—Lash repeatedly, and Wurman—and he engages it seriously, drawing on Lash’s reconstruction of the debates and Wurman’s account of jurisdiction and citizenship. What is absent is any engagement with the originalist scholarship that reaches the opposite result. Michael Ramsey, Keith Whittington, James Heilpern, Akhil and Vikram Amar—none appears. Most striking, given the dissent’s claim to be vindicating the original meaning, is the absence of James Ho, who argued years ago, as a matter of original public meaning and well before this controversy was politically salient, that the Clause confers citizenship on the children of aliens including the unlawfully present. The point is not that Justice Thomas was obligated to agree with these scholars. It is that an opinion resting its result on original public meaning, and engaging the originalist literature on its own side, owes the reader an account of the strongest originalist work against it.
My bottom line is that Thomas’s opinion does employ an adequate originalist methodology. It engages with both the primary sources and some of the scholarly literature. What Thomas did not do was engage in a careful analysis of the originalist scholarship on the other side of the debate.
Justice Alito
Justice Alito dissents alone, and on a theory distinct from Justice Thomas’s. Where Justice Thomas routes “subject to the jurisdiction” through domicile, Justice Alito routes it through allegiance: the Clause confers citizenship only on those who, at birth, owe allegiance solely to the United States, and the children of those whose allegiance is divided by a foreign nationality fall outside it.
Begin with the theoretical question, on which Justice Alito is the most explicit member of the Court. He does not merely reason in an originalist register; he announces the commitment. An “avowedly textualist Court,” he writes, should begin by examining the precise text of the Citizenship Clause, and he braces the point with the textualist canon—citing Alliance for Hippocratic Medicine, Dobbs, Gibbons v. Ogden, and Heller for the proposition that constitutional analysis starts with the words. The word “avowedly” is doing real work: it identifies textualism as the method Justice Alito takes to be his own and the Court’s, and it presses the majority to honor a commitment it professes. Nor is the profession merely verbal. The structure of the opinion follows it: Justice Alito treats the original meaning of the constitutional text as the ground of decision, and the modalities he draws on—the Civil Rights Act, the common-law background, the theory of allegiance—are marshaled as evidence of that meaning rather than as independent sources of constitutional law. Whatever the difficulties of execution I take up below, the theoretical characterization is clear: Justice Alito’s opinion is committed to originalism in the strict sense.
There is a further theoretical wrinkle worth drawing out. Having begun with the text, he does not pretend the text resolves the case. He concedes that “jurisdiction” is a term of many meanings; he concedes that the phrase was not a term of art during Reconstruction, and that the majority does not claim it was; and he concedes that the text “does not provide a definitive answer.” Constitutional theorists might characterize this move as follows. Alito identifies an ambiguity in the crucial term “jurisdiction” and then attempts to resolve the ambiguity by looking at the historical context—a move that theorists call “contextual disambiguation.”
The context to which Alito looks is the Civil Rights Act. The “full explanation” of the constitutional phrase, on Justice Alito’s account, is supplied by the 1866 statute’s “not subject to any foreign power,” on the premise that the same Congress adopted both within a six-month span and meant them to be substantively identical. Much could be said about this move from a theoretical perspective, but here are some questions: (1) Is Alito relying on a Framers’ Intentions argument by appealing to what Congress was trying to accomplish? (2) Has Alito elided the “public meaning” question by failing to consider whether the meaning he identified was actually conveyed to the public and the ratifiers after Congress proposed the amendment.
There is a further wrinkle that complicates the theoretical characterization. Justice Alito embraces, rather than resists, the principle that a generally worded rule applies beyond the circumstances its drafters had in mind—citing the textualist canon that we apply general language across the board, not only to applications “on the minds of the legislators at the time of adoption,” and aligning himself on this point with Justice Kavanaugh. This is a repudiation of original-expected-applications reasoning, and it is the correct public-meaning position. Yet the allegiance reading he then adopts, with its ad hoc exception for those whose parents have “done everything within their power . . . to become Americans,” is difficult to derive from the communicative content of the words and looks instead like a rule calibrated to reach a desired set of results. The majority presses exactly this objection: the exception cannot be squared with Justice Alito’s own stated test, under which anyone automatically made a foreign national falls outside the Clause. An opinion that disclaims expected-applications reasoning in principle, but whose operative rule requires an unwritten exception to avoid unacceptable applications, has not fully escaped the thing it disclaims.
On the scholarly dimension, Justice Alito’s engagement is the thinnest of the originalist-inflected opinions. He works the primary sources—Calvin’s Case and the theory of monarchical allegiance, the Declaration’s repudiation of perpetual allegiance, the antebellum scarcity of citizenship litigation, the Civil Rights Act debates—with evident care. But he engages essentially none of the modern scholarship on either side. Neither Lash nor Wurman anchors his allegiance reading in the way they anchor Justice Thomas’s domicile reading, and the inclusive originalists—Ramsey, Whittington, Ho, the Amars—are absent here as they are everywhere else in the dissents. The selectivity I identified in Justice Thomas takes a slightly different form in Justice Alito: not engagement with one side’s scholars and silence as to the other’s, but near-silence as to the scholarship altogether, with the affirmative case built from the primary sources and the sister statute.
Justice Sotomayor
Justice Sotomayor joined the Chief Justice’s opinion in full and wrote nothing separately on the meaning of the Clause. She also joined the introduction and Part I of Justice Jackson’s concurrence. Neither act supports an independent characterization of her method. A silent join signals agreement with the result and the reasoning as written; it does not reveal which of the majority’s four modalities the joining Justice would have considered decisive, or whether she shares the Chief Justice’s pluralism or would have rested the case on original meaning alone. Of course, we have other evidence of Justice Sotomayor’s theoretical orientation that would suggest she is a pluralist, but for the purposes of this post, the only question is what her joins in Barbara demonstrate.
Her partial join of Justice Jackson’s concurrence adds a little, but less than it might seem. The portions she joined—the introduction and Part I—are the parts that develop the anticaste and antisubordination reading of the Fourteenth Amendment’s history and respond to Justice Thomas’s narrower account of the Amendment’s purpose. Arguably, this portion of Jackson’s opinion is employing the constitutional values modality. If that is correct, then Sotomayor’s join suggests that her orientation is pluralist.
Justice Kagan
Justice Kagan joined the Chief Justice’s opinion in full and wrote nothing separately. The characterization is therefore the most straightforward and the most limited: she agreed with the majority’s reasoning as written. That reasoning is pluralist, resting on the convergence of text, common law, practice, and precedent, and a join records agreement with it. It does not tell us whether Justice Kagan would herself have organized the argument around original meaning, around precedent, or around the historical purpose of the Amendment, because she did not say.
Justice Gorsuch
Justice Gorsuch joined Justice Thomas’s dissent in full, so on the meaning of the Clause his position is Justice Thomas’s: the domicile reading of “subject to the jurisdiction,” with the theoretical commitment to original meaning as binding and the methodological vulnerabilities I have already described. But he also wrote separately, and his separate opinion does something none of the other dissents do. It declines to rest on the merits of the citizenship question and turns instead to the posture of the case—and in doing so it partly pulls away from the result his join endorses.
The separate opinion makes two moves. The first is a point about the form of the challenge. Respondents brought a facial challenge and obtained an injunction against every application of the Executive Order, and under Salerno a facial challenge fails unless no set of circumstances exists in which the order could be applied lawfully. On the domicile reading he shares with Justice Thomas, the order has at least some lawful applications—children of genuinely temporary visitors, who by definition maintain no domicile here—so the facial challenge must fail and the injunction cannot stand in full. This is not an argument about what “subject to the jurisdiction” means. It is an argument about the relationship between the form of the challenge and the breadth of the remedy, and it would dispose of the case on the pleadings without settling the meaning of the Clause for the harder cases.
The second move is more striking, because it cuts against the order. Justice Gorsuch volunteers doubt about the order’s application to a category his own theory might be thought to cover: children born here to parents who have made the United States their permanent home but whose presence violates the immigration laws. If domicile is the test, he asks, where are such parents domiciled, if not here—and if the answer is nowhere, how does that square with the settled principle that every person is domiciled somewhere? He does not resolve the question, noting that it may not be properly presented in a facial challenge. But the fact that he raises it at all, in a separate writing whose evident purpose is to narrow what the Court should be taken to have decided, places him at some distance from the unqualified domicile reading. He joins the theory and then worries about one of its applications.
On the theoretical dimension, Gorsuch’s join indicates that he is an orginalist. On the methodological dimension, his separate writing is preoccupied not with the meaning of the words or the originalist scholarship—he engages neither, citing no scholars on either side and offering no independent account of “jurisdiction”—but with remedy, posture, and the internal coherence of the domicile test under pressure. Of course, Gorsuch joined Thomas’s opinion in full and hence Thomas’s methodology is fairly attributed to him.
Justice Kavanaugh
Justice Kavanaugh concurred in the judgment and dissented in part. He would not have reached the constitutional question at all. The Executive Order, he argues, is unlawful under a statute—8 U.S.C. §1401(a)—and the Court could and should have decided the case on that narrow ground. He thus supplies the sixth vote for the judgment while disagreeing with the five-Justice majority on the meaning of the Citizenship Clause. The result is the statutory off-ramp that many anticipated.
The statutory argument turns on the fact that §1401(a), first enacted in 1940 and reenacted in 1952, confers citizenship on persons “born in the United States, and subject to the jurisdiction thereof”—the exact words of the Citizenship Clause. This is the situation I have elsewhere called the problem of the same language in different texts, and it admits of three possibilities. The statute might borrow both (1) the constitutional words and (2) their communicative content, so that the statutory phrase means whatever the constitutional phrase correctly means. Or the statute might borrow the words alone, taking on whatever content those words communicated in 1940 and 1952, which need not be identical to their 1868 content if linguistic drift had occurred. Or, third, the statute might borrow the words together with the settled judicial construction a prior Court had placed on them—an authoritative gloss that governs the statute whether or not it correctly captured the meaning of the Clause. Justice Kavanaugh takes the third possibility, on the basis of the reenactment canon: when Congress in 1940 and 1952 employed the precise language that this Court had construed in Wong Kim Ark, it is presumed to have adopted the construction this Court had given that language. The statute, on his account, incorporates Wong Kim Ark’s general rule and its closed set of exceptions, and the Executive Order, by adding two new exceptions, exceeds what the statute permits.
Kavanaugh is engaging in statutory originalism (the originalist form of statutory textualism), and the mechanism repays a closer look, because it is what makes his off-ramp genuine. The reenactment canon does not presuppose that Wong Kim Ark was correctly decided. It presupposes only that, by 1940, the words “subject to the jurisdiction thereof” carried an established judicial construction, and that Congress, in adopting those words in a comprehensive immigration statute, adopted that construction along with them. What the statute incorporates, in other words, is Wong Kim Ark’s reading of the Clause—an authoritative gloss—not the true communicative content of the Clause itself. Those two things come apart precisely when the precedent is mistaken. If Wong Kim Ark misread the Citizenship Clause, then the statute (which carries Wong Kim Ark) and the Constitution (correctly read) mean different things, and the statutory question can be answered without resolving what the Clause itself means. That is why the third option, and not the first, is the one Justice Kavanaugh needs: the statute borrows neither the bare words alone nor the Clause’s correct meaning, but the settled construction a prior Court had placed on the words, right or wrong.
Justice Kavanaugh turned briefly, to the constitutional question he claims not to need to decide, and there he parts from the majority: he contends that Wong Kim Ark’s treatment of the four exceptions as a closed set was mistaken, on the ground that constitutional principles apply to new and unforeseen circumstances, so that the set of exceptions need not be frozen as of 1868. The reenactment canon freezes the 1898 construction into the statute whether or not that construction was correct; a statute can adopt a precedent’s reading on the strength of Congress’s having legislated against it, entirely independent of the reading’s merits. So, Justice Kavanaugh can consistently hold that §1401(a) carries Wong Kim Ark’s closed set while believing that the Constitution itself, correctly read, contains no such frozen set.
One further feature of the closed-set argument deserves notice. Justice Kavanaugh’s quarrel is with the rule-architecture of Wong Kim Ark—a general rule of birthright citizenship plus a fixed list of four exceptions—and specifically with the claim that the list is sealed against new entries, “permanently frozen . . . as of 1868.” That is a claim about the structure of the 1898 Court’s rule, not about the communicative content of “subject to the jurisdiction thereof.” And it is Wong Kim Ark that he charges with the error: the closed-set treatment, he says, has “consistently been read that way, including by plaintiffs and the Court today.” But the majority does not rest on a frozen list. Its theory of the phrase is territorial—to be subject to the jurisdiction is to be subject to the sovereign’s power to govern those within its territory—and the narrow exceptions follow from that meaning rather than constituting it: the children of foreign ministers, and the members of nineteenth-century tribes over whom the United States had ceded jurisdiction, are excluded because they genuinely fell outside the sovereign’s governing power, not because they appear on a closed list. A majority whose exceptions are derived from a meaning, rather than enumerated as a definition, need not regard the list as frozen at all; it could accept new exceptions if the territorial meaning warranted them, and reject the order’s proposed exceptions because that meaning does not. Justice Kavanaugh’s closed-set critique thus lands squarely on the precedent he reads the statute to have incorporated, and only glancingly on the opinion from which he is dissenting. That is a further sense in which his constitutional discussion is detached from the work the majority actually does: he disputes Wong Kim Ark’s rule-architecture, which his statutory holding needs, while leaving the majority’s meaning-based reasoning, which his statutory holding does not touch, largely unengaged.
On the two dimensions, then, Justice Kavanaugh is the hardest opinion to place. On the statutory question he is a textualist who resolves the borrowed-language problem by reading the statute to carry the constitutional meaning. On the constitutional question he is neither an originalist in the strict sense nor a pluralist of the majority’s kind; his closed-set argument is a claim about how constitutional rules apply over time, and it engages neither the historical-linguistic evidence the majority marshals nor the originalist scholarship on either side. He cites none of the watch-list scholars, restrictionist or inclusive; his constitutional discussion is brief by his own design and rests on interpretive principle rather than on the meaning of “jurisdiction” in 1868. The most accurate characterization is that Justice Kavanaugh decided a statutory case well and left the constitutional question genuinely underdeveloped.
Justice Barrett
Justice Barrett joined the Chief Justice’s opinion in full and wrote nothing separately. By the criteria I have applied throughout, that makes her a join, and a join is what the tally will record.
Barrett’s silence is interesting because Justice Barrett is the member of the majority with the most developed public commitment to originalism as a theory of constitutional adjudication, and the opinion she joined is, on my characterization, pluralist rather than originalist in the strict sense. Three readings of her join are available. On the first reading, Justice Barrett saw no tension to resolve: the Chief Justice’s opinion does the historical-linguistic work that originalism asks for, recovers the communicative content of the Clause from the period evidence, and reaches the result the original meaning supports, so an originalist could join it without endorsing the further modalities as load-bearing—taking the textual analysis as the ground and the rest as confirmation. On the second reading, Justice Barrett is more of a pluralist in practice than her theoretical writing suggests, and the convergence of text, common law, practice, and precedent is precisely the kind of argument she finds persuasive. On the third, the join reflects agreement with the result and the bottom-line reasoning at a level of generality that does not commit her to any view about which modality controls. Nothing in a silent join discriminates among these three possibilities
Justice Barrett agreed that the original meaning of “subject to the jurisdiction thereof” is the territorial one, that the children of parents unlawfully or temporarily present are subject to the Nation’s jurisdiction, and that the Executive Order is therefore unconstitutional. She did so by joining an opinion that does the originalist work well on its textual modality, whatever the status of the other modalities in her own thinking. For a Justice often expected to insist that original meaning be not merely present but dispositive, the decision to join rather than to concur separately—to write nothing distinguishing her own ground from the Chief Justice’s—is itself a small piece of evidence that the strong textual work in the majority opinion was enough for her, and that she did not regard the surrounding modalities as a reason to stand apart. That is an observation about what she did not do, offered for whatever modest weight it carries, and not a claim about a method she declined to put on paper.
Justice Jackson
Justice Jackson joined the Chief Justice’s opinion in full and also wrote a concurrence, joined in its introduction and Part I by Justice Sotomayor. Because she joined the majority in full, she shares its result and its reasoning; her vote is not in question and her agreement with the territorial reading is recorded by the join. The concurrence is therefore additive, and what it adds is not a second account of the meaning of “subject to the jurisdiction thereof” but a response to Justice Thomas on a different plane altogether.
The concurrence’s target is Justice Thomas’s characterization of the Fourteenth Amendment’s purpose. Justice Thomas presents the Amendment as a measure for the freed slaves and those situated like them—people who had no other homeland and owed allegiance to no other sovereign—and reads the domicile requirement partly out of that limited purpose. Justice Jackson answers that the Reconstruction Amendments were not a “spot treatment for the dark stain of slavery” but an anticaste, antisubordination reset of the Nation’s conception of citizenship, universalist in aim and not confined to the circumstances of the freedmen. She develops this through the history of the Second Founding, the advocacy that surrounded ratification, and the scholarship of Reconstruction, and she turns Justice Thomas’s own invocation of Dred Scott against him: the narrow reading, she argues, reintroduces the very principle—that birth on American soil does not suffice for citizenship—that the Amendment was adopted to bury.
For the two questions this post asks, the concurrence occupies a distinctive position, and characterizing it correctly requires care. The natural first description—that it is the one separate opinion that does not engage the communicative content of the operative words—is true but misleading, because it suggests that Justice Jackson stands apart from the meaning analysis. She does not. She joined the Chief Justice’s opinion in full, and that opinion does the textual and historical-linguistic work; she owns it. What the concurrence does is add a modality the majority opinion does not develop. The Chief Justice’s pluralism runs through four modalities—text and original meaning, the common law, post-ratification practice, and precedent. Justice Jackson is a pluralist too, and her separate writing extends that set with a fifth: the modality of constitutional values, the anticaste and antisubordination principles she reads the Fourteenth Amendment to embody. Hers is not an opinion that declines to engage meaning; it is an opinion that, having joined the meaning analysis, contributes a further ground the majority left unstated.
That the fifth modality is constitutional values, and not merely historical purpose, is worth establishing, because the two are easily confused and the difference matters for the framework. A historical-purpose argument claims, as a matter of fact about 1866 to 1868, that the framers aimed at a particular end, and reads the Amendment to reach that end. A constitutional-values argument claims that the Amendment embodies a principle that is itself authoritative, and that present cases should be decided by fidelity to that principle whether or not the ratifiers foresaw them. Justice Jackson’s concurrence does both, but its center of gravity is the second. She frames the Amendment as a repudiation of the idea of a “superior, dominant, ruling class of citizens,” coupled with a present “willingness to see, and strive to eliminate, all remaining vestiges of historical subjugation.” She universalizes past the freedmen’s circumstances: the Fourteenth Amendment cases have always turned, “at bottom,” on “universal liberty and equality interests,” so that the governing question “is (and always has been): Does the affected individual or group enjoy equal dignity?” And she answers Justice Thomas’s charge that the Court has protected “rights that the Reconstruction Congress never contemplated” not by insisting that the Congress did contemplate them, which would be the historical-purpose rejoinder, but by treating the Amendment’s antisubordination command as binding whether or not it was contemplated, which is the values rejoinder. The principle, not the enumerated expectation, is what governs. That is constitutional-values argument in the recognized sense, resting on a historical foundation but not reducible to it.
Two features of the concurrence remain true on this characterization. Its scholarly engagement runs to the historians of Reconstruction—Foner above all—and to the historians’ and scholars’ amicus briefs, not to the originalist literature on either side of the citizenship question; the inclusive originalists who reached the majority’s result on original-meaning grounds do not appear here any more than they appear in the dissents. And the concurrence does not itself engage the meaning of “jurisdiction” in 1868, because it does not need to: that work is done by the opinion Justice Jackson joined, and her separate writing adds a modality rather than substituting for the one the majority supplied.
The right characterization, then, is that Justice Jackson is a pluralist who widens the modal range of the opinion she joined. Through her join she endorses the majority’s pluralism and its strong textual work, and on that basis she belongs with the majority on both of this post’s dimensions. Through her concurrence she adds the constitutional-values modality to the four the Chief Justice deployed, so that the majority bloc, taken together, rests the result on five modalities where the dissents rest theirs on two—text and the antecedent law. This is a point worth carrying into the tally and the conclusion, because it bears on the breadth of the disagreement: the Justices who reached the broad result did so through a wider and more varied set of constitutional arguments than the Justices who reached the narrow one, and Justice Jackson’s separate writing is part of what makes that so. In the tally I will record her with the majority on both dimensions, and I will note that her distinctive contribution is the addition of a modality—constitutional values—rather than a competing account of the meaning of the text.
The Tally
| Justice | Disposition | Theoretical | Engages Semantics Directly | Engages Primary Sources | Engages Scholarship |
|---|---|---|---|---|---|
| Roberts | Broad reading (majority author) | Constitutional Pluralism | Yes | Yes | No |
| Thomas | Narrow reading (principal dissent, joined by Gorsuch) | Originalism | Partial | Yes | Partial |
| Alito | Narrow reading (solo dissent) | Originalism | Partial | Yes | No |
| Sotomayor | Broad reading (joins Roberts in full) | Join does not reveal theory | Yes (via join) | Yes (via join) | No |
| Kagan | Broad reading (joins Roberts in full) | Join does not reveal theory | Yes (via join) | Yes (via join) | No |
| Gorsuch | Narrow reading (joins Thomas in full; writes separately) | Joins an originalist opinion; own writing structuralist | Partial (via join) | Yes (via join) | No |
| Kavanaugh | Judgment only — statutory ground | Statutory originalist; constitutional method indeterminate | No | Partial | No |
| Barrett | Broad reading (joins Roberts in full) | Join does not reveal theory (notable given her profile) | Yes (via join) | Yes (via join) | No |
| Jackson | Broad reading (joins Roberts in full; writes separately) | Join does not reveal theory; own writing pluralist (adds values modality) | Yes (via join) | Yes (via join) | No |
Two general observations precede the particulars. The first is that there is a great deal of originalism in Barbara. Every Justice is committed to the consideration of original meaning, either in an opinion of his or her own or via a join. No member of the Court treated the original meaning of “subject to the jurisdiction thereof” as irrelevant; no opinion rested on raw consequences, or on precedent untethered to meaning, or on living-constitutionalist updating of the kind the modality of constitutional values can sometimes invite. Even Justice Jackson’s concurrence, which adds the values modality, joins in full an opinion built on the recovery of original meaning. Whatever else divides the Court, the relevance of original meaning is common ground. That is itself a fact about where the Court now stands.
The second observation concerns what the votes do and do not reveal. On the theoretical question—originalism or constitutional pluralism—the opinions sort into three groups, and only some of the Justices can be placed.
Two Justices wrote opinions that are constitutional pluralist: Chief Justice Roberts and Justice Jackson. The Chief Justice’s opinion rests the result on the convergence of text, common law, post-ratification practice, and precedent; Justice Jackson’s separate writing adds the modality of constitutional values. But—and this is the point that the chart’s theoretical column is built to register—joining the Chief Justice’s opinion does not itself indicate a commitment to pluralism. His opinion contains a complete originalist ground: it reaches the originalist result and supplies the originalist reasons, alongside the others. An originalist can therefore join it without endorsing pluralism, taking the textual analysis as sufficient and the remaining modalities as surplus; a pluralist can join it because the convergence persuades. The join is consistent with both postures. The pluralist character belongs to the opinion, not necessarily to each Justice who signed it.
Three Justices are clear constitutional originalists. Justice Thomas wrote an opinion that is originalist in the strict sense, resting the result on the recovered meaning of the Clause and treating that meaning as decisive. Justice Alito wrote separately and alone, on a different theory, but his opinion is likewise originalist in the strict sense: he too treats the original meaning as the ground, and his difficulties are difficulties of execution rather than departures into another modality. And Justice Gorsuch joined Justice Thomas’s opinion in full. Here the join is more revealing than the majority joins, for a structural reason: Justice Thomas’s opinion offers a single ground, the original meaning, and no pluralist path runs through it, so to join it is to endorse the originalist rationale because there is no other on offer. Justice Gorsuch’s separate writing is structuralist rather than meaning-based, which is why the chart records his theory through the join while noting that his own pen did different work; but the join points toward originalism in a way the majority joins do not point toward pluralism.
Justice Kavanaugh stands apart from this division because his commitment is to statutory originalism. He treats the communicative content of §1401(a), fixed at enactment and carrying the construction settled in Wong Kim Ark, as binding—originalism applied to a statute. On the constitutional question he is indeterminate: his one constitutional move, the closed-set argument, is a claim about a precedent’s durability rather than an account of the Clause’s meaning, and it is consistent with either theoretical posture. He is a statutory originalist whose constitutional method the opinion does not reveal. Of course, there is other evidence that bears on Justice Kavanaugh’s theoretical orientation, but the question we are addressing is very narrow: what did Justice Kavanaugh’s opinion in this one case tell us about his theoretical commitments?
That leaves three Justices—Justice Sotomayor, Justice Kagan, and Justice Barrett—whose theoretical commitments are not revealed by their votes. Each joined the Chief Justice’s opinion in full, and for the reason just given a join of that opinion is theoretically uninformative. (Justice Jackson also joined in full, but she is placed by her separate writing, which is itself pluralist in character; she is therefore a pluralist on both counts—by the opinion she wrote and the opinion she joined—and not among the unrevealed.) The most striking of the three is Justice Barrett, whose developed commitment to originalism as a theory makes her silent join of a pluralist opinion notable—though, as I have said, the join is consistent with an originalist’s judgment that the textual ground sufficed, and one cannot read more from it than that. The honest tally therefore records three clear pluralists—Chief Justice Roberts and Justice Jackson by opinion, with Justice Jackson’s join reinforcing rather than complicating the placement—three clear constitutional originalists in Justice Thomas, Justice Alito, and Justice Gorsuch, one statutory originalist of indeterminate constitutional method in Justice Kavanaugh, and three Justices whose theory their votes leave open.
I turn to the methodological dimension, where the three engagement columns of the chart tell a more uniform story on two of the three measures and a stark one on the third.
Begin with the engagement of semantics—direct work on the communicative content of “subject to the jurisdiction thereof.” Here the striking fact, consistent with the prevalence of originalism just described, is that only one Justice neither writes nor joins an opinion that engages the meaning of the text. That Justice is Justice Kavanaugh, and only as to the Constitution: he resolves the case on the statute and addresses the constitutional phrase not at all, his closed-set argument going to a precedent’s durability rather than to what the words mean. Every other Justice engages the semantics or joins an opinion that does. The engagement varies in quality—the chart records the Chief Justice’s direct work as full and the dissents’ as partial, because Justice Thomas reaches the meaning through domicile law and Justice Alito through the Civil Rights Act, each routing around the words rather than through them—but the engagement is nearly universal. Eight of nine Justices stand behind an account of what the Clause means.
The engagement of primary sources is universal without qualification. All nine Justices write or join opinions that work the historical record directly—the founding-era and Reconstruction sources, the congressional debates, the 1866 Act, the executive and judicial practice, the antebellum cases. On this measure the Court is unanimous in method even as it divides in result: no opinion rests on assertion, and every position is built from the period materials. This is worth stating plainly because it distinguishes Barbara sharply from the removal cases, where the historical record on the meaning of the relevant text went largely unworked. Whatever its other features, Barbara is a case in which the whole Court did the historical labor.
The engagement of scholarship is where the uniformity break. Only one Justice engages the originalist scholarship on birthright citizenship at all: Justice Thomas, who draws on Lash and Wurman. No other opinion engages the literature. And Justice Thomas’s engagement, real as it is, is one-sided: he meets the originalist scholarship that supports the narrow reading and passes over the originalist scholarship that reaches the opposite result. Michael Ramsey, Keith Whittington and James Heilpern, Akhil and Vikram Amar, and James Ho. The contest among originalist scholars that I described at the outset, a contest in which the inclusive side was defended by an impressive roster on original-meaning grounds, left almost no trace in the United States Reports. The one Justice who considered the originalist literature entered only half of it.
It is worth being precise about what this does and does not show, because the point is about method and not motive. It does not show that any Justice acted in bad faith, and it does not show that engaging the contrary scholarship would have changed any vote. What it shows is a pattern in the practice of constitutional argument: an opinion can rest its result on original public meaning, can engage the originalist literature that supports its conclusion, and can still decline to confront the strongest originalist work against it. That is a methodological shortcoming on its own terms—the terms the opinion sets for itself by claiming the original meaning—and it is most consequential in the opinion that most fully claims the originalist mantle, the principal dissent. An originalism confident enough to engage Lash and Wurman owed its readers an answer to Whittington, Ramsey, the Amars, and Ho.
The methodological tally, then, runs the near-inverse of what the theoretical tally might lead one to expect. The opinions that are originalist in the strict sense—Justice Thomas’s and Justice Alito’s—engage the semantics only partially, routing to the meaning through antecedent law, and engage the contrary scholarship not at all or only on one side. The pluralist opinion, the Chief Justice’s, engages the semantics most directly, though it too leaves the scholarship aside.
Conclusion
Let me start with a comparison of Barbara with Slaughter and Cook. I did a post analyzing the role of originalism in those cases on Monday, June 29: Constitutional Theory in Slaughter and Cook: The Roles of Originalism and Constitutional Pluralism.
In the removal cases, only one Justice—Justice Thomas—committed to originalism in the strict sense; the rest of the Court, the Chief Justice included, reasoned in the register of constitutional pluralism, and the originalist idiom that surfaced in places was idiom rather than method. In other words, there wasn’t much originalism in Slaughter and Cook. Barbara presents a markedly larger originalist presence. Three Justices either wrote or joined opinions that are originalist in the strict sense: Justice Thomas and Justice Alito each wrote one, on different theories and reaching the same narrow result, and Justice Gorsuch joined Justice Thomas’s in full, a join that—because Justice Thomas’s opinion offers the original meaning as its single ground—signals an originalist commitment in a way that joining a multi-modal opinion does not. Justice Kavanaugh adds a fourth originalist presence of a particular kind: he committed to statutory originalism, treating the enactment-era meaning of §1401(a) as binding, while leaving his constitutional method undisclosed. And one further Justice, Justice Barrett, joined a constitutional-pluralist opinion—though, as I have stressed, that join is by itself a weak signal of her own theory, because the opinion she joined supplied a complete originalist justification of the outcome and an originalist could sign it without embracing pluralism.
Why the difference between the two cases? The most economical explanation is not that the Justices changed their methods between the removal cases and Barbara, but that the texts changed. The Vesting Clause gave the textual modality very little to grip: there is scant founding-era linguistic evidence fixing the content of “the executive Power” with respect to removal, and so an opinion bent on resolving the removal question had to reach for structure, precedent, and practice. The Citizenship Clause is different. “Subject to the jurisdiction thereof” has a recoverable 1868 meaning, supported by dictionaries, by a settled legal usage running through Schooner Exchange, and by an unusually full historical record. Where the text offers original meaning real purchase, original meaning can do real work, and Justices inclined to rest on it have something to rest on. One way of characterizing this situation is that the removal cases required constitutional construction for their full resolution, and hence modalities other than text were necessarily involved. To be clear, none of the Justices put it that way.
A larger originalist presence on the theoretical dimension did not produce the best possible originalism on the methodological one. The opinions that committed to originalism as their theory—Justice Thomas’s and Justice Alito’s—reached the meaning (semantic content) of the operative words only obliquely, through the antecedent domicile law and the sister statute, and engaged the contesting originalist scholarship either on one side alone or not at all. The opinion that did the most direct and most rigorous work on the original meaning of the Clause was the Chief Justice’s, which is not originalist in the strict sense at all, but pluralist—an opinion that treats original meaning as one modality among text, common law, practice, and precedent, and happens to develop that one modality better than the opinions that treat it as the whole. The theoretical commitment to originalism and the methodological achievement of good originalism, in other words, came apart in Barbara, and they came apart in the direction opposite to the one the labels would predict. That is the lesson I take from the case: in deciding what role originalism is playing on the Supreme Court, it is not enough to ask who flies the flag. One must ask who does the work—and in Barbara the answer to the two questions is not the same.
So, is Barbara good news or bad news for originalism? Begin with the good news. Every single Justice joined an opinion that signaled that original meaning is at least a legitimate modality of constitutional interpretation. On that theoretical question the Court was unanimous; in Barbara, to borrow a phrase Justice Kagan might use, we are all originalists now. And there is more good news beyond the bare minimum: three Justices wrote or joined opinions that appeared committed not merely to the legitimacy of original meaning but to a strong originalism that treats recovered meaning as the decisive ground.
The bad news is the converse of the second point. Barbara provides no evidence that five or more Justices are committed to strong originalism; the three who appeared so committed were the three in dissent, and the five in the majority joined an opinion that, whatever the strength of its textual work, is pluralist in structure and leaves each joining Justice’s deeper commitment undisclosed. And there is a further piece of bad news that emerges only when Barbara is read alongside Slaughter and Cook: across the three cases, only Justice Thomas is consistently committed to what is sometimes called lionhearted originalism—originalism that treats original meaning as decisive even when it cuts against precedent, practice, and preferred results. The others who appeared committed in Barbara were not tested in the removal cases in the same way or reasoned differently there.
The role of originalism in three cases is, of course, not the whole story, and two Justices illustrate why a fuller picture requires looking past the opinions in any single Term. Justice Barrett’s extrajudicial writings suggest a strong commitment to a robust originalism, though her version appears to carry several defeasibility conditions that her silent join in Barbara neither confirms nor dispels. Justice Kavanaugh, by contrast, seems to waffle. His opinion in West Virginia v. B.P.J., announced the same day as Barbara, appeared explicitly committed to a conservative form of constitutional pluralism that treats text, history, and precedent as the relevant modalities—a posture closer to the Chief Justice’s in Barbara than to the strict originalism of the dissents, and one that sits beside his statutory originalism here without obviously cohering with it.
There is a structural reason for this. Chief Justice Roberts wrote all three of the controlling opinions—in Slaughter, in Cook, and now in Barbara—and in each he assigned the opinion to himself. None of the three is originalist in method; each is an exercise in constitutional pluralism. The Chief Justice, on the evidence of what he has written, is not an originalist. And because the senior Justice in the majority controls the assignment of the opinion, a pluralist Chief Justice who keeps the major cases for himself will produce pluralist majority opinions, however many originalists sit to his sides. The only thing that reliably overrides that dynamic is votes: five Justices aligned on a strong originalism in the mold of Justice Thomas can always command the majority opinion, because they are the majority, and the opinion follows the five wherever they are willing to go. A Court with five such Justices could write originalist majority opinions whether or not the Chief Justice wished to. But that is not the Court we have.
The Court we have is something short of that, but well past indifference. It is not merely originalism-curious, willing to entertain an original-meaning argument when a litigant presses one. It is originalism-friendly: it treats original meaning as a serious and often weighty modality, rewards the party who does the historical work, and—as Barbara shows—will unite all nine Justices behind the proposition that original meaning is a legitimate and important ground of decision.
What the Supreme Court is not, yet, is an originalist Court. The clearest evidence is the simplest: across Slaughter, Cook, and Barbara—three cases in which originalism was available, argued, and in Barbara richly supported by the text—there was not a single originalist majority opinion. A Court that takes originalism seriously but never lets it control the opinion of the Court is a Court on friendly terms with originalism, not a Court committed to the proposition that the original public meaning of the constitutional text is binding.
What I have said so far might sound like tepid optimism about the prospects for originalism. But take the long view, and Barbara looks like a major victory for originalism. The year before Justice Scalia joined the Court, the grand total of originalist Justices was zero. Through the Warren Court era and for long after, it would have been nearly inconceivable that all nine Justices would sign opinions assuming that originalism is a legitimate and important method of constitutional interpretation—a legitimate modality. That assumption is now common ground, shared across an otherwise divided Court and visible in a case where the meaning of the text was contested on all sides. Whether the Court contains a majority of strong originalists is, on the evidence of Barbara, doubtful. That the Court now takes original meaning seriously as a matter of course is not in doubt at all—and measured against where the practice stood two generations ago, that is a radical transformation.
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