Citizenship on Trial: The Long, Uneasy Life of the Fourteenth Amendment
From the Founders’ deliberate silence on enslaved people to Friday's Supreme Court ruling, America’s promise of birth-right citizenship has zigzagged through two centuries of conflict.
By Michael D. Peabody, Esq.
Yesterday, on the final Friday of the Supreme Court’s 2025 term, a 6–3 majority in Trump v. CASA, Inc. lifted nationwide injunctions that had blocked President Donald Trump’s order denying automatic citizenship to most children born to undocumented parents. The ruling gives the administration thirty days before the policy can begin, while litigation grinds on. Hospitals, state agencies and expectant families have scrambled to ask the same question: does the Fourteenth Amendment still protect a baby who first draws breath on American soil? [1]
For the better part of a century the answer seemed obvious. Section 1 of the Fourteenth Amendment, ratified in 1868, begins with a blunt sentence: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” That promise was meant to settle, once and for all, a debate the Founders had ducked nearly a hundred years earlier.
1 | The deliberate silence of 1787
When delegates gathered in Philadelphia, slavery loomed over every paragraph. Southern representatives feared that any national definition of citizenship might open the door to emancipating or enfranchising enslaved people, so the finished Constitution referred only to “Citizens of the several States.” Each state would decide who counted—and who did not. [2]
Congress filled the vacuum with the Naturalization Act of 1790, which limited naturalization to “free white persons of good moral character.” Enslaved Africans, free Black residents, Native nations and most women were excluded by design. By ensuring that federal citizenship began and ended with whiteness, lawmakers insulated the slave economy from any future claim that an enslaved person might also be a citizen. [3]
2 | Dred Scott and the antebellum breach
The façade cracked in 1857. Dred Scott, an enslaved man who had lived for a time on free soil, asked the Supreme Court to recognize his freedom. Chief Justice Roger Taney answered that Black Americans “had no rights which the white man was bound to respect,” denying Scott’s standing and declaring Congress powerless to restrict slavery in the territories. The opinion locked slavery’s logic into constitutional doctrine and helped push the nation toward war. [4]
3 | War, Reconstruction and a second founding
Union victory upended Taney’s framework. In 1866 Congress, over President Andrew Johnson’s veto, enacted the first Civil Rights Act, declaring that “all persons born in the United States … are hereby declared to be citizens.” Still, Radical Republicans feared a future Congress might repeal the statute. Their solution was to embed its core principle in the Constitution. Submitted the same year and ratified on July 9 1868, the Fourteenth Amendment guaranteed birth-right citizenship, due process and equal protection—provisions aimed squarely at the legal structure that had sustained slavery. [5]
4 | Retreat begins almost at once
The ink was barely dry before the Supreme Court narrowed the amendment. The Slaughter-House Cases (1873) treated the Privileges or Immunities Clause as nearly empty. United States v. Cruikshank (1876) and the Civil Rights Cases (1883) said the amendment reached only state action, not private violence or discrimination. Southern legislatures filled the vacuum with segregation laws that Plessy v. Ferguson (1896) later stamped as “separate but equal.” [6]
5 | A lone, bright beacon
One line held firm. In United States v. Wong Kim Ark (1898) the Court ruled that a child born in San Francisco to Chinese parents—immigrants barred from naturalization—was an American citizen from the moment of birth. Birth location, not parentage, was the decisive fact, and the ruling fortified the Citizenship Clause for more than a century. [7]
6 | Federal power cuts the other way
The federal government could also wield its authority against minorities. After Pearl Harbor, President Franklin Roosevelt’s Executive Order 9066 forced 120,000 Japanese Americans from their homes. Korematsu v. United States (1944) upheld the exclusion, accepting military claims of necessity over equal-protection objections. Washington, once the defender of citizenship, had become its adversary. [8]
7 | The second reconstruction
A decade later the pendulum swung again. Brown v. Board of Education (1954) declared that segregated schools violated equal protection. Congress followed with the Civil Rights Act of 1964 and the Voting Rights Act of 1965, recasting Washington as the chief protector of individual rights against recalcitrant states. For a generation, federal courts and agencies worked to make the Fourteenth Amendment’s paper promises real. [9]
8 | Modern recoil
The alliance frayed in the twenty-first century. Shelby County v. Holder (2013) struck down the Voting Rights Act’s pre-clearance formula, urging Congress to rely on “current data.” Ten years later, Students for Fair Admissions v. Harvard (2023) ended race-conscious college admissions, narrowing what equal protection could accomplish. The decisions signaled a broader skepticism toward federal civil-rights tools. [10]
9 | CASA and the new flash point
On June 27, 2025, Trump v. CASA, Inc. completed the pendulum’s swing. Writing for the majority, Justice Amy Coney Barrett said lower courts “likely exceed” their authority when they issue universal injunctions. Her opinion dissolved two such orders and let the executive policy advance after a brief grace period. [1]
The order rests on a novel reading of the clause “subject to the jurisdiction” of the United States—a phrase drafted in 1866 to exclude diplomats’ children and invading armies. For decades, judges and scholars across the spectrum treated the exception as narrow; now the government claims it excludes millions of newborns whose parents lack legal status. The Court has allowed that argument to proceed, treating a once-settled point as a genuine question.
10 | Why limiting injunctions changes everything
A single nationwide injunction can halt an unlawful rule before it harms people whom the plaintiffs will never meet. By curbing that remedy, CASA turns constitutional protections into a geographic lottery. A baby born in Los Angeles might be recognized as a citizen, while a sibling born days later in Dallas could be stateless until litigation winds its way through the courts.
Rights, in this new framework, hinge on timing and luck. Class actions can still provide broad relief, but certification often takes months or years—time during which children grow up without passports, Social Security numbers or the peace of knowing they belong.
11 | States switch sides—again
During Jim Crow, federal power tried (fitfully) to expand rights against hostile states. During World War II, Washington led the assault on Japanese American citizens while a handful of Western governors objected. Today California, Maryland and New York cite the Fourteenth Amendment to defend birth-right citizenship, while the federal government seeks to narrow it. The actors have changed, but the constitutional script—federal versus state, inclusion versus exclusion—plays on.
12 | A timeline measured in babies, not briefs
District judges in Maryland and Washington plan merits hearings in late July, just days before the grace period lapses. Lawyers debate emergency appeals; hospitals wonder what to print on birth certificates; parents count down due dates, not court deadlines. Constitutional theory is colliding with diaper-bag reality.
13 | The pendulum’s arc
Taken whole, the history of American citizenship reads like a seismograph tracing the nation’s appetite for inclusion:
1790 Naturalization limited to “free white persons.”
1857 Dred Scott freezes Black Americans out of citizenship.
1868 Fourteenth Amendment inscribes birth-right citizenship.
1873-1896 Court retreats in Slaughter-House, Cruikshank and Plessy.
1898 Wong Kim Ark re-affirms jus soli.
1944 Korematsu shows even citizens can lose rights in wartime.
1954-1965 Brown, the Civil Rights Act and the Voting Rights Act mark federal resurgence.
2013-2023 Shelby and Students for Fair Admissions narrow that resurgence.
2025 Trump v. CASA invites the government to question birth-right citizenship itself.
Every pivot has required extraordinary pressure: civil war, world war, mass protest. Whether the latest turn becomes another retreat or the prelude to a new expansion will depend on Congress, the courts and public resolve.
14 | What comes next
Courtroom strategy Civil-rights lawyers are racing to certify nationwide classes before the grace period ends. A successful motion could restore broad protection; failure would leave a patchwork of rulings that pushes the issue back to the Supreme Court, perhaps next term.
Legislative duels Democrats have introduced a one-sentence bill reaffirming that “all persons born in the United States are citizens.” Republican sponsors counter with a measure redefining “jurisdiction” to exclude the children of undocumented parents. Neither side has sixty votes in the Senate—yet.
Administrative chaos The Centers for Disease Control and Prevention quietly surveys state vital-records offices: How will they record births if citizenship rules shift mid-summer? Immigration lawyers warn of a “stateless class” unable to claim any nationality—born here, denied papers, unwelcome elsewhere.
15 | The stakes, distilled
The Founders’ silence on citizenship was no oversight; it was a pact to keep human bondage in place. It took a civil war to write an inclusive rule and a civil-rights movement to make that rule real. Today a single executive order, backed by a Supreme Court skeptical of broad remedies, threatens to reopen the question the Fourteenth Amendment was meant to close. The text has not changed. What has changed—once again—is who wields power to interpret it.
Justice Sonia Sotomayor’s dissent in CASA warns that the majority’s ruling threatens every constitutional guarantee. In her words, by stripping “all federal courts, including itself, of [the] power” to issue relief that protects everyone affected, the Court “kneecaps the Judiciary’s authority to stop the Executive from enforcing even the most unconstitutional policies.”
Because only the named plaintiffs are now protected, she continued, the decision creates a “zone of lawlessness” where the Executive may “enforce policies that flout settled law and violate countless individuals’ constitutional rights” until each victim manages to file—and win—an individual lawsuit. In short, Sotomayor argues that no right is secure if courts cannot issue orders broad enough to halt unlawful government action for everyone it harms.
Whether the promise that “all persons born” on American soil belong here survives intact will be decided not in theory but in maternity wards, DMV lines and passport offices. For families expecting children after July, the nation’s second founding feels less like a settled guarantee and more like a cliffhanger.
Footnotes
Supreme Court opinion, Trump v. CASA, Inc. PDF, June 27 2025. supremecourt.gov
Madison’s notes on the Constitutional Convention, Library of Congress. supreme.justia.com
Naturalization Act of 1790, Library of Congress. loc.gov
Chief Justice Roger Taney, opinion in Dred Scott v. Sandford (1857), Library of Congress. loc.gov
Civil Rights Act of 1866 and Congressional Globe debates.
Supreme Court summaries for The Slaughter-House Cases (1873), United States v. Cruikshank (1876) and the Civil Rights Cases (1883), Justia. supreme.justia.comaclu.orgsupreme.justia.com
United States v. Wong Kim Ark (1898), Justia. supreme.justia.com
Executive Order 9066 and Korematsu v. United States (1944), National Archives and Oyez.
Brown v. Board of Education (1954), Civil Rights Act of 1964 and Voting Rights Act of 1965, National Archives.
Shelby County v. Holder (2013), Students for Fair Admissions v. Harvard (2023), Justia. supreme.justia.com
Reuters term wrap-up on CASA and nationwide injunctions, June 28 2025. reuters.com
ACLU press release on class-action filings, June 2025. aclu.org