x02a1 Global Outlook

During oral arguments in Trump v. Barbara, the birthplace citizenship case handed down from the Supreme Court on Tuesday, Solicitor General John Sauer observed that “we’re in a new world now … where 8 billion people are one plane ride away from having a child who’s a U.S. citizen.”

Four justices would go on to agree with this originalist argument, that the framers of the 14th Amendment did not understand their words to confer citizenship on the offspring of illegal aliens and birth tourists. But Chief Justice John Roberts dismissed Sauer’s point, retorting that while it may be “a new world, it’s the same Constitution.” He clearly thought it was a clever turn of phrase, an impression no doubt bolstered by the fawning media coverage of his remark. Released on Tuesday, his majority opinion takes the same approach to a foundational constitutional question as his cheap potshot at Sauer: he shows little interest in compelling originalist arguments, instead issuing shallow and misapplied but noble-sounding platitudes.

Joined by Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, Roberts declared that, if a pregnant foreigner travels to the United States — legally or illegally, for 20 years or 20 minutes — to give birth, the 14th Amendment demands that act be rewarded by granting the child the full privileges of American citizenship. At the center of his argument is an aspirational concept of “allegiance” he grounds in the practices of feudal Europe. Because British subjects “born within the dominions and under the protection of a particular sovereign” owed a “tie or duty” to that sovereign, Roberts reasons, the children of foreigners born on American soil must be bound by the same allegiance and thus demanded citizenship.

Ironically, Roberts’ decision to reward illegal immigration and birth tourism is the surest way to destroy the bonds of allegiance he claims inform his opinion. He uses the term “allegiance” 51 times, emphasizing the mutual duties that British sovereigns and subjects owed each other. But such an argument is irreconcilable with the practice he defends: allowing people with no practice or intention of “allegiance” to the United States to secure citizenship for their children.