Trump v. Barbara

1
(Slip Opinion) OCTOBER TERM, 2025
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.
v. BARBARA
ET AL.
CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 25–365. Argued April 1, 2026—Decided June 30, 2026
The question presented is whether the Constitution guarantees citizen-
ship to children born in the United States of parents who are unlaw-
fully or temporarily present in the country. Under the Citizenship
Clause of the Fourteenth Amendment, “[a]ll persons born or natural-
ized in the United States and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside.” On
January 20, 2025, President Trump issued Executive Order No. 14160,
titled Protecting the Meaning and Value of American Citizenship. The
Order provides that children born in the United States of parents who
are unlawfully or temporarily present here are not “subject to the ju-
risdiction” of the United States—and thus do not qualify for citizenship
under the Fourteenth Amendment or the Immigration and Nationality
Act (INA), which uses the same language. 90 Fed. Reg. 8449. Several
parents filed suit, some in the name of their children, arguing that the
Executive Order violates the Fourteenth Amendment and the INA.
The District Court agreed, provisionally certified a nationwide class of
children who would be denied citizenship by the Order, and prelimi-
narily enjoined the Order’s enforcement. This Court granted certiorari
before judgment.
Held: Children born in the United States to parents unlawfully or tem-
porarily present are “subject to the jurisdiction” of the United States
and are citizens at birth under the Fourteenth Amendment’s Citizen-
ship Clause. Pp. 2–26.
(a) The Citizenship Clause must be understood in light of its histor-
ical context, from the English common law to the widespread condem-
nation of the Court’s decision in Dred Scott v. Sandford, 19 How. 393.

2 TRUMP v. BARBARA
Syllabus
Pp. 2–9.
(1) Under the English common law, children “born within the [sov-
ereign’s] dominions” owed a natural “allegiance” to the sovereign who
protected them at birth, 1 W. Blackstone, Commentaries on the Laws
of England 354, 356 (Blackstone), regardless of how “momentary and
uncertain” their presence, Calvin’s Case, 7 Co. Rep. 1a, 6a, 77 Eng.
Rep. 377, 384. Such children were therefore “natural-born subject[s].”
Doe v. Jones, 4 T. R. 300, 308, 100 Eng. Rep. 1031, 1035. The same
rule applied to children born of parents subject to expulsion. See, e.g.,
4 Blackstone 166. The rule’s exceptions were narrow: children born in
lands the sovereign did not control, children born in areas temporarily
outside the sovereign’s control, and children of foreign ministers (by a
fiction of extraterritoriality). Calvin’s Case, 7 Co. Rep., at 18a–18b, 77
Eng. Rep., at 399.
This common law of citizenship—known as jus soli, or right of the
soil—crossed the Atlantic and prevailed in “each and all of the states”
after American independence. 2 J. Kent, Commentaries on American
Law 39, n. a (Kent). The rule was applied even to the novel situation
of quasi-sovereign Indian tribes, who maintained “dominion[s]” of
their own such that Indians born under those dominions were not “cit-
izens” but members of “alien and sovereign tribes.” Goodell v. Jackson
ex dem. Smith, 20 Johns. 693, 714–715 (N. Y. Ct. Corr. Errors). In a
Nation of immigrants, jus soli’s broad scope took on particular im-
portance, assuring that children of foreigners—including those here on
a “temporary sojourn,” Lynch v. Clarke, 1 Sand. Ch. 583, 638, 663–664
(N. Y. Ch.)—would be American citizens by birth alone. Pp. 2–6.
(2) In Dred Scott v. Sandford, the Court departed from the com-
mon law and adopted the view that blood, not soil, determined citizen-
ship; it held that those descended from slaves could not be citizens. 19
How., at 419. The decision was met with shock, see D. Potter, The
Impending Crisis, 1848–1861, p. 281; 3 Writings of Abraham Lincoln
55, and abolitionists swore to undo what the Court had done, see 2 Life
and Writings of Frederick Douglass 259, 415, 424. Pp. 6–8.
(3) In the midst of the Civil War, Attorney General Edward Bates
issued a landmark opinion citing key authorities, including Calvin’s
Case and Kent’s Commentaries, rejecting the premise that “citizenship
is ever hereditary,” and declaring that “every person born in the coun-
try is, at the moment of birth, prima facie a citizen, . . . without any
reference to race or color.” 10 Op. Atty Gen. 382, 394, 399. The excep-
tions were “few”—“the small and admitted class of the natural-born
composed of the children of foreign ministers and the like.” Id., at 397.
Following the war, Congress sought to turn Bates’s opinion into law
by enacting the Civil Rights Act of 1866, which made citizens of “all
persons born in the United States and not subject to any foreign power,

3 Cite as: 609 U. S. ___ (2026)
Syllabus
excluding Indians not taxed.” §1, 14 Stat. 27. The Act was simply
assumed to invoke the common law rule. See Cong. Globe, 39th Cong.,
1st Sess., 1116 (Rep. Wilson); id., at 1832 (Rep. Lawrence). Pp. 8–9.
(b) What the Civil Rights Act began, the Fourteenth Amendment,
and its repudiation of Dred Scott, would finish. Pp. 9–12.
(1) The Fourteenth Amendment’s Citizenship Clause mirrored the
common law’s criteria for citizenship, starting with territory (a child
must be “born . . . in the United States”) and ending with sovereign
power (a child must be “subject to the jurisdiction” of the United
States). A child born on American soil and subject to American law
was made an American citizen. Even the language of the Clause is
that of the common law, echoing cases and treatises that described the
common law rule. See, e.g., Lynch, 1 Sand. Ch., at 668; Kent 38 and n.
a. And its principal author explained that its language was “simply
declaratory of . . . the law of the land already.” Cong. Globe, 39th
Cong., 1st Sess., 2890 (Sen. Howard). Pp. 9–10.
(2) The Citizenship Clause’s key phrase—“subject to the jurisdic-
tion”—refers to the power of the United States to govern those within
its territory. N. Webster, An American Dictionary of the English Lan-
guage 732 (def. “jurisdiction”); J. Worcester, Dictionary of the English
Language 1435 (def. “subject”). The scope of that power was settled
largely by Schooner Exchange v. McFaddon, 7 Cranch 116, where
Chief Justice Marshall explained that “jurisdiction” referred to “the
full and complete power of a nation within its own territories,” “sus-
ceptible of no limitation not imposed” by the nation itself. Id., at 136.
The narrow exceptions to jurisdiction arose where exercising jurisdic-
tion would “degrade the dignity” of “foreign sovereigns”—most fre-
quently in the case of “foreign ministers.” Id., at 136–139. But private
individuals who traveled to the United States for “business or caprice”
were “amenable to the jurisdiction of the country.” Id., at 144. Chil-
dren born in the United States to parents unlawfully or temporarily
present here are thus subject to the Nation’s jurisdiction. Pp. 10–12.
(c) The Court’s precedent in United States v. Wong Kim Ark, 169
U. S. 649, confirms this rule. Pp. 13–16.
(1) For nearly two decades after the Amendment’s ratification, the
Executive Branch viewed the Citizenship Clause as “simply an affir-
mance of the common law,” with the limited exception of “the children
of foreign ministers,” and others “with rights of extraterritoriality.”
Memorandum of Secretary of State H. Fish to Mr. Marsh (May 19,
1871), in 2 Digest of the International Law of the United States §183,
p. 394. But the end of the Reconstruction era brought uncertainty.
Around that time, the State Department began to deny citizenship to
those with “dual or doubtful allegiance,” id., at 402, and several schol-
ars proposed a new international-law based theory of the Citizenship

4 TRUMP v. BARBARA
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Clause, focused on the parents’ status, not the child’s, F. Wharton,
Conflict of Laws §10, p. 35. Only if a child’s parents were “domiciled
in the United States” was the child “internationally subject to the ju-
risdiction of the United States,” as the Citizenship Clause (they said)
required. Id., §12, at 41–42 (emphasis added). Acknowledging that
the common law took a different view, these writers insisted that jus
soli had not been made part of the Constitution. Pp. 13–14.
(2) In Wong Kim Ark, the Court held that the Fourteenth Amend-
ment was “declaratory” of the “fundamental rule of citizenship by
birth” that prevailed at common law, 169 U. S., at 688, excluding only
those recognized as exempt “from the jurisdiction of this country”—the
“children of ambassadors” and those born in the nations of Indian
tribes, id., at 675, 681–683, 693. All others were citizens at birth,
whether born to permanent residents or temporary visitors. See id.,
at 676, 687–688. The Court wrote that the words “ ‘subject to the ju-
risdiction thereof’ ” “must be presumed to have been understood . . . in
the same sense” as Chief Justice Marshall used them in Schooner Ex-
change. Wong Kim Ark, 169 U. S., at 687. Under that understanding,
aliens who traveled to the United States for “business or pleasure” re-
ceived no “exemption from the jurisdiction of the country.” Id., at 686.
To the contrary, they were subject to that jurisdiction for as long as
they remained here—and any children born to them were American
citizens under the Fourteenth Amendment. See id., at 682–688.
Pp. 14–16.
(d) Arguments for limiting birthright citizenship to those domiciled
in the United States fail. These arguments err in their definition of
“allegiance,” contending that natural allegiance was no longer suffi-
cient for citizenship and that some greater quantum of allegiance
(based on domicile) was required. There is scant evidence for this dra-
matically revisionist view; sources from 1776 to 1868 defined “alle-
giance by birth” just as the British did—as “the tie or duty” owed by
one who is “born within the dominions and under the protection of a
particular sovereign.” Inglis v. Trustees of Sailor’s Snug Harbour in
City of New York, 3 Pet. 99, 155.
Domicile and national citizenship are distinct concepts; one who es-
tablishes a domicile in a new country does not automatically become a
citizen thereof, nor does he automatically lose his prior citizenship.
The congressional debates over the Civil Rights Act of 1866 and the
Fourteenth Amendment confirm the common law rule. Statements
embracing the common law rule were far more frequent and explicit
than ambiguous references to “temporary sojourners.” See, e.g., Cong.
Globe, 39th Cong., 1st Sess., 1117. For a Congress intent on putting
the question of citizenship “once and forever [to] rest,” Cong. Globe,
42d Cong., 1st Sess. 575, a domicile-based qualification would have

5 Cite as: 609 U. S. ___ (2026)
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introduced significant uncertainty. Yet the word “domicile” appears
just twice in the discussion of the relevant provision of the Civil Rights
Act, see Cong. Globe, 39th Cong., 1st Sess. 1160; id., at 1117, and in
only one speech from the Citizenship Clause debates, see id., at 3031–
3032. Sources from after the ratification of the Fourteenth Amend-
ment do not put in doubt the understanding of the Citizenship Clause
at the time of (and after) its ratification. In any case, postenactment
history cannot override the text. If Congress intended to limit Ameri-
can citizenship to the children of those domiciled in the United States,
nothing in the succinct language of the Citizenship Clause conveyed
that design; words appearing frequently in the Executive Order—
“mother,” “father,” “lawful,” “temporary”—are absent from the Clause.
Attempts to narrow Wong Kim Ark by noting that the Court’s opin-
ion repeatedly referred to the domicile of Wong’s parents fail because
the holding’s underlying reasoning cannot be squared with a domicile
requirement; the Court exhaustively canvassed the text and history of
the Citizenship Clause and at no point identified any evidence that the
ratifiers thought themselves to be imposing a domicile limitation.
Pp. 17–26.
Affirmed.
R
OBERTS, C. J., delivered the opinion of the Court, in which
S
OTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined. JACKSON, J.,
filed a concurring opinion, in which SOTOMAYOR, J., joined as to the in-
troduction and Part I. K
AVANAUGH, J., filed an opinion concurring in the
judgment and dissenting in part. THOMAS, J., filed a dissenting opinion,
in which GORSUCH, J., joined. ALITO, J., and GORSUCH, J., filed dissenting
opinions.

_________________
_________________
1 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 25–365
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES,
ET AL., PETITIONERS v. BARBARA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 30, 2026]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
At issue in this case is whether the Constitution guaran-
tees citizenship to children born of parents unlawfully or
temporarily present in the United States.
I
The Fourteenth Amendment provides:
“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 re-
side.”
On January 20, 2025, President Trump issued Executive
Order No. 14160, titled Protecting the Meaning and Value
of American Citizenship. The Order provides that children
born of persons unlawfully or temporarily present in the
United States are not “subject to the jurisdiction” of the
United States—and thus do not qualify for citizenship un-
der the Fourteenth Amendment or the Immigration and

2 TRUMP v. BARBARA
Opinion of the Court
Nationality Act (INA), which uses the same language. 90
Fed. Reg. 8449.
1
Several parents filed suit, some on their own behalf, oth-
ers on behalf of (and in the name of ) their children. They
argued that the Executive Order violates the Fourteenth
Amendment and the INA. The District Court agreed. 790
F. Supp. 3d 80, 101–102 (NH 2025). It provisionally certi-
fied a nationwide class of children who would be denied cit-
izenship by the Order and preliminarily enjoined the Or-
der’s enforcement. Id., at 105–106. We granted certiorari
before judgment. 607 U. S. 1079 (2025).
II
To understand the Citizenship Clause of the Fourteenth
Amendment, it is first necessary to understand the context
in which it arose—and the opinion of this Court, Dred Scott
v. Sandford, 19 How. 393 (1857), that it rejected.
A
The story of citizenship in the United States begins with
the English common law. Before the Revolution, the Amer-
ican colonists—like all in the British Empire—were consid-
ered subjects of the sovereign. See Inglis v. Trustees of
Sailor’s Snug Harbour in City of New York, 3 Pet. 99, 120–
121 (1830). That arose not from royal fiat, but from what
the common law conceived as the relationship between the
sovereign and the people. The King, Blackstone explained,
owes those “born within the dominions” a duty of
——————
1
In full, the Executive Order declares that “the privilege of United
States citizenship does not automatically extend to persons born in the
United States: (1) when that person’s mother was unlawfully present in
the United States and the father was not a United States citizen or law-
ful permanent resident at the time of said person’s birth, or (2) when that
person’s mother’s presence in the United States at the time of said per-
son’s birth was lawful but temporary . . . and the father was not a United
States citizen or lawful permanent resident at the time of said person’s
birth.” Exec. Order No. 14160, 90 Fed. Reg. 8449 (2025).

3 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
“protection.” 1 W. Blackstone, Commentaries on the Laws
of England 354 (1765) (Blackstone); see also id., at 358.
And “in return for that protection,” those “born within the
dominions” owe the King a “duty” of “allegiance” (some-
times rendered “ligeance”). Id., at 354, 356. Children born
with that allegiance were “natural-born subject[s].” Doe v.
Jones, 4 T. R. 300, 308, 100 Eng. Rep. 1031, 1035 (K. B.
1791) (Kenyon, C. J.). As Lord Coke put it in the celebrated
Calvin’s Case, 7 Co. Rep. 1a, 77 Eng. Rep. 377 (K. B. 1608),
a “dual and reciprocal tie” thus connects “the Sovereign and
[his] subject[s].” Id., at 4b–5a, 77 Eng. Rep., at 382 (trans-
lated from Latin).
Because the sovereign’s power (and thus his duty) was
limited in various respects, so too was the scope of this rule.
He could not demand allegiance from—for he could not pro-
tect—those born in lands that he did not control. Id., at
18a, 77 Eng. Rep., at 399. (Among that group were the peo-
ple born in the King’s lost dominions—“France, Aquitain,
Normandy, &c.”—over which he claimed an “absolute right”
but had no actual power to rule. Ibid.) The same held true
even in discrete areas within his kingdom that were tempo-
rarily outside his control. See id., at 18a–18b, 77 Eng. Rep.,
at 399 (if “enemies” were to “possess” a “castle or fort,” their
children would not be born “under the King’s ligeance”).
And the same held true for ambassadors (and their fami-
lies), who were considered—by a fiction of extraterritorial-
ity—to remain on foreign soil and thus “under the ligeance”
of their home country. Id., at 18a, 77 Eng. Rep., at 399; see
also Schooner Exchange v. McFaddon, 7 Cranch 116, 138–
139 (1812) (Marshall, C. J., for the Court).
In all other respects, however, the sovereign’s power—
and his claim to the people’s allegiance—was complete. A
foreign mother could enter the British Isles, give birth, and
leave with her child the very next day, and that child would
remain a British subject. Why? Because the child owed an
implied allegiance to the sovereign who protected him at his

4 TRUMP v. BARBARA
Opinion of the Court
birth—no matter how “momentary and uncertain” his pres-
ence in the King’s realms.
2
Calvin’s Case, 7 Co. Rep., at 6a,
77 Eng. Rep., at 384; see also Doe, 4 T. R., at 308, 100 Eng.
Rep., at 1035. The same rule applied to children born in the
realm of parents subject to expulsion. For example, chil-
dren of “gypsies” (today, called Romani or Roma people)
born in the realm were natural-born subjects, notwith-
standing that British law at the time “directed” the Roma
people “to avoid the realm” under “pain of imprisonment”
or even death. 4 Blackstone 166 (1769); see Brief for Gerard
N. Magliocca as Amicus Curiae 2–4; cf. H. Hirota, Expelling
the Poor 114–115 (2017) (describing outcry in 1855 when
Massachusetts deported a pauper Irish mother with her
American-born infant, who was acknowledged to be a “na-
tive born citizen”). For those children, and all others born
in Britain, the rule was the same: With protection came al-
legiance, and with allegiance came the status of a natural-
born subject.
This view crossed the Atlantic with the colonists—and
was adopted with little fanfare after the Revolution, as
“subject[s]” of the sovereign became “citizens” of the States.
See State v. Manuel, 20 N. C. 144, 152 (1838). This common
law of citizenship—known as jus soli, or right of the soil—
prevailed in “each and all of the states” after American in-
dependence, and continued to emphasize reciprocal “alle-
giance” and “protection.” 2 J. Kent, Commentaries on
American Law 38–39, n. a, 40 (6th ed. 1848) (Kent). By “the
doctrine of natural allegiance,” all “who [we]re born within
the jurisdiction of a State” were citizens. W. Yates, Rights
——————
2
The mother, too, owed the British King allegiance “for so long [a] time
as [she] continue[d]” in his territory. 1 Blackstone 358. But her alle-
giance was just “local and temporary”—the product of her presence in
the British realm. J. Wharton, Law Lexicon 40 (E. Hopper ed., 2d Am.
ed. 1860). Unlike the lasting allegiance of her natural-born son, the
mother’s allegiance was extinguished as soon as she left the British do-
minions.

5 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
of Colored Men 36 (1838) (Yates); see W. Rawle, A View of
the Constitution of the United States of America 86 (2d ed.
1829).
When the newly independent Americans confronted a
novel situation, unknown to England—that of the quasi-
sovereign Indian tribes—they turned to the principles of
the common law. Did the tribes truly govern their people?
Or were their people wholly subsumed within the United
States? Echoing Coke and Blackstone, Chancellor Kent an-
swered with the common law. “We have purchased the
greater part of their lands, destroyed their hunting
grounds, . . . and gradually abridged their native independ-
ence,” Kent acknowledged. Goodell v. Jackson ex dem.
Smith, 20 Johns. 693, 711 (N. Y. Ct. Corr. Errors 1823).
Even so, he reasoned, the “United States ha[s] never dealt
with those people, within our national limits, as if they were
extinguished sovereignties.” Id., at 714. They were instead
“dependent nations” that maintained “dominion[s]” of their
own. Id., at 712, 714. Indians born under those dominions,
he concluded, were not “citizens or subjects of the United
States,” but members of “alien and sovereign tribes.” Id., at
715. Others followed Kent’s lead, see J. Kettner, The De-
velopment of American Citizenship, 1608–1870, pp. 294–
296 (1978) (Kettner), all the while emphasizing that the
“very few exceptions” to the sovereign’s power were narrow
indeed, H. Binney, Alienigenae of the United States 16 (2d
ed. 1853) (Binney).
In a Nation of immigrants—an “asylum for mankind,” in
Thomas Paine’s words—jus soli’s broad scope took on par-
ticular importance. Common Sense (1776), in 1 Writings of
Thomas Paine 101 (M. Conway ed. 1894). The young Re-
public attracted tens of thousands of émigrés from the Old
World—Scotch-Irish, French, German, Welsh, and many
more, some of whom hoped to stay only a short time, others
of whom hoped never to leave. See M. Jones, American Im-
migration 64–91 (1960). No matter their intentions,

6 TRUMP v. BARBARA
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however, they could be assured that their children would be
American citizens by birth alone. As Justice Story said,
“[n]othing is better settled.” Inglis, 3 Pet., at 164 (opinion
concurring in part and dissenting in part). The very first
American legal treatise agreed. See 1 Z. Swift, A System of
the Laws of the State of Connecticut 164, 167 (1795) (“chil-
dren of aliens” are citizens, for they owe a “duty” at birth to
the “government, under whose protection [they] came into
existence”). As did the antebellum era’s foremost case on
the topic, Lynch v. Clarke, 1 Sand. Ch. 583 (N. Y. Ch. 1844).
Lynch reiterated that “the common law rule was the law of
the land” for the children of “citizens” and “foreigners”
alike—including those foreigners here merely on a “tempo-
rary sojourn.” Id., at 638, 663–664. The promise of Ameri-
can citizenship, Lynch declared, extends to “all persons
born within the jurisdiction of the United States.” Id., at
668 (internal quotation marks omitted).
B
The common law “made no distinction on account of race
or color.” United States v. Rhodes, 27 F. Cas. 785, 789 (No.
16,151) (CC Ky. 1866) (Swayne, J.). But the slave States
did. As the Civil War approached, more and more Southern
States sought to deny citizenship to black Americans—and
openly rejected the common law to reach that result. See
Kettner 320–324. It was “not the place of a man’s birth”
that made him a citizen, these States said, “but the rights
and privileges he may be entitled to enjoy.” Amy v. Smith,
11 Ky. 326, 332 (1822). On that view, “[t]he prejudice . . . of
caste” was “unconquerable.” Bryan v. Walton, 14 Ga. 185,
202 (1853). Not even emancipation could “confer citizen-
ship,” these States held, because free African Americans
still suffered from “social and civil degradation” based on
“the taint of blood.” Id., at 198. With the common law aban-
doned, almost 500,000 free black Americans in the South
were left little more than “strangers.” African Methodist

7 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
Episcopal Church v. New Orleans, 15 La. 441, 443 (1860);
see I. Berlin, Slaves Without Masters 136–137 (1974).
In the odious decision of Dred Scott v. Sandford, this
Court imposed the Southern States’ beliefs onto the Nation.
19 How. 393. Chief Justice Taney, writing for the Court,
concluded that “the words ‘people of the United States’ and
‘citizen[s]’” had an unexpressed (and atextual) racial com-
ponent—one that excluded all those descended from slaves.
Id., at 419. Even if Massachusetts or Connecticut chose to
grant citizenship to the freedmen, they still could not par-
ticipate in national affairs. See id., at 422–423. They were
“born in the country,” Chief Justice Taney acknowledged,
and thus “did owe allegiance to the Government”—the pre-
cise criteria for citizenship at common law. Id., at 420. But
they were “not included, and were not intended to be in-
cluded, under the word ‘citizens’ in the Constitution.” Id.,
at 404. For them, blood, not soil, was made the rule.
Dred Scott was met with shock. Ever since “the Declara-
tion of Independence,” Justice Curtis wrote, “the received
general doctrine has been, in conformity with the common
law”—that all “free persons born within” a State are “citi-
zens of the United States.” Id., at 576–577 (dissenting opin-
ion). Justice McLean said much the same. “Being born un-
der our Constitution and laws,” he explained, “make[s] him
a citizen.” Id., at 531 (dissenting opinion). Northern news-
papers condemned Dred Scott as “a wicked and false judg-
ment,” “an atrocious doctrine,” “a deliberate iniquity,” and
a “willful perversion.” D. Potter, The Impending Crisis,
1848–1861, p. 281 (1976). The decision was, in Lincoln’s fa-
mous words, an “astonisher in legal history.” 3 Writings of
Abraham Lincoln 55 (A. Lapsley ed. 1905).
Abolitionists swore to undo what the Court had done. “By
birth,” Frederick Douglass insisted, “we are American citi-
zens.” 2 Life and Writings of Frederick Douglass 259 (P.
Foner ed. 1950). “The Constitution knows all the human
inhabitants of this country as ‘the people,’” he explained, no

8 TRUMP v. BARBARA
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matter their “color, class, or clime.” Id., at 415, 424. “[A]ll
I ask of the American people is, that they live up to the Con-
stitution, adopt its principles, imbibe its spirit, and enforce
its provisions.” Id., at 424. “When this is done,” Douglass
predicted, “the glorious birthright of our common human-
ity” will once again “become the inheritance of all the in-
habitants of this highly favored country.” Ibid.
C
The Court had overruled the common law, but the peo-
ple—eventually—would overrule the Court. It took more
than a decade—and the addition of names such as Antie-
tam, Gettysburg, and Chancellorsville to our national
canon—but Douglass’s vision of “our common humanity”
would be fulfilled.
The Reconstruction Congress did not start from scratch.
In the midst of the Civil War, President Lincoln’s Attorney
General, Edward Bates, had issued a landmark opinion
that sought to displace Dred Scott in favor of the common
law. Citing the key authorities (among them Calvin’s Case
and Kent’s Commentaries), Bates rejected the premise that
“citizenship is ever hereditary.” 10 Op. Atty. Gen. 382, 399
(1862). “[E]very person born in the country,” he wrote, “is,
at the moment of birth, prima facie a citizen . . . without
any reference to race or color, or any other accidental cir-
cumstances.” Id., at 394. He acknowledged that there were
some limits—hence “prima facie,” not “conclusive.” See id.,
at 394, 396–397. But those exceptions were “few,” simply
“the small and admitted class of the natural-born composed
of the children of foreign ministers and the like.” Id., at
397. To Bates, it was soil—not blood—that “furnishes the
rule, both of duty and of right.” Id., at 394; see also 10 Op.
Atty. Gen. 328, 328–329 (1862) (referring to Lynch for its
“full and clear statement” of the common law).
A year after General Lee’s surrender at Appomattox,
Congress sought to turn Bates’s opinion into law. The

9 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
result was the Civil Rights Act of 1866. The Act declared
that “all persons born in the United States and not subject
to any foreign power, excluding Indians not taxed, are
hereby . . . citizens of the United States.” §1, 14 Stat. 27.
To the Reconstruction Congress, the Act was simply as-
sumed to invoke the common law rule—as Bates had in his
“ablest and most exhaustive opinion,” Cong. Globe, 39th
Cong., 1st Sess., 1116 (1866) (Rep. Wilson), and as the New
York Court of Chancery had “[i]n the great case of Lynch vs.
Clarke,” id., at 1832 (Rep. Lawrence). Indeed, the bill’s
sponsor, Senator Lyman Trumbull, enthusiastically agreed
with the bill’s critics that it would make citizens of “the chil-
dren of Chinese and Gypsies born in this country.” Id., at
498. “[E]ven the infant child of a foreigner born in this land
is a citizen” under this bill, Trumbull declared. Id., at 1757.
The specter of Dred Scott, however, loomed over Con-
gress’s efforts. Opponents of the Act contended that Con-
gress could not grant such expansive citizenship (and set
aside this Court’s precedent) by statute alone. See, e.g.,
Cong. Globe, 39th Cong., 1st Sess., at 497–498 (Sen. Van
Winkle); id., at 499 (Sen. Cowan). To quiet those con-
cerns—and to permanently enshrine the common law in the
Constitution—Congress turned to the Fourteenth Amend-
ment.
III
A
What the Civil Rights Act began, the Fourteenth Amend-
ment would finish. Like the Act, the Fourteenth Amend-
ment was intended to repudiate Dred Scott. This time, how-
ever, the goal was even grander—to put the “great question
of citizenship” “beyond the legislative power” altogether, to
settle the issue once and for all. Cong. Globe, 39th Cong.,
1st Sess., at 2891, 2896 (Sen. Howard).
The Fourteenth Amendment achieved its aim. The Citi-
zenship Clause mirrored the common law’s criteria for

10 TRUMP v. BARBARA
Opinion of the Court
citizenship. The Clause starts, like the common law, with
territory—a child must be “born . . . in the United States,”
not elsewhere (even to American parents). And the Clause
ends, again like the common law, with sovereign power—a
child must be “subject to the jurisdiction” of the United
States, unlike (say) the families of foreign ministers. A
child born on American soil and subject to American law
was made an American citizen.
Even the language of the Clause is that of the common
law. Lynch held that American citizenship extended to “all
persons born within the jurisdiction of the United States.”
1 Sand. Ch., at 668. So did Chancellor Kent. See Kent 38,
and n. a (“all persons born within the jurisdiction and alle-
giance of the United states” are citizens). So did the first
legal treatise on the rights of free black Americans. See
Yates 36 (all “who are born within the jurisdiction of a
State” are citizens). And so did the famed antebellum law-
yer Horace Binney. See Binney 20 (children “born within
the limits and under the jurisdiction of the United States”
are citizens). Little wonder, then, that the Citizenship
Clause’s principal author would explain that its language
was “simply declaratory of . . . the law of the land already.”
Cong. Globe, 39th Cong., 1st Sess., at 2890 (Sen. Howard).
That law was clear. Any child who was born “under the
protection of ” the United States—that is, any child for
whom no extraterritorial fiction applied—was made a citi-
zen, for he owed a natural “allegiance” (and thus “obedi-
ence”) to the Nation. Lynch, 1 Sand. Ch., at 668; see Cong.
Globe, 39th Cong., 1st Sess., at 570 (Sen. Morrill) (the “es-
sential elements of citizenship” are “allegiance on the one
side and protection on the other”).
B
Even putting the common law to one side, the Citizenship
Clause’s key phrase—“subject to the jurisdiction”—requires
the same result. The word “jurisdiction” was hardly

11 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
unknown to the drafters and ratifiers of the Fourteenth
Amendment. Congress chose to use an established legal
term and the Clause must be interpreted in that light.
In 1868, as today, “jurisdiction” (in the context of a sover-
eign) refers to the “[p]ower of governing or legislating.” N.
Webster, An American Dictionary of the English Language
732 (C. Goodrich & N. Porter eds. 1865); see also, e.g., 1 B.
Abbott, Dictionary of Terms and Phrases Used in American
or English Jurisprudence 671 (1879) (“The authority of gov-
ernment; the sway of a sovereign power”). To be “subject
to” the jurisdiction of the United States, then, is to “liv[e]
under” its “dominion,” J. Worcester, Dictionary of the Eng-
lish Language 1435 (1860), a meaning reinforced by the
Clause’s territorial focus on those born “in” the United
States. The Citizenship Clause uses jurisdiction in its ordi-
nary sense—referring to the power of the United States to
govern those within its territory.
The scope of that power was well settled in 1868, largely
by “the celebrated case” of Schooner Exchange v. McFad-
don, 7 Cranch 116. See H. Wheaton, Elements of Interna-
tional Law §96, p. 154 (8th ed. 1866). Expounding on “gen-
eral principles,” Chief Justice Marshall explained that
“jurisdiction” referred to “the full and complete power of a
nation within its own territories.” 7 Cranch, at 136. That
“absolute” power was “susceptible of no limitation not im-
posed” by the nation itself. Ibid. All sovereigns, however,
were understood to have impliedly waived their jurisdiction
in “certain peculiar circumstances”—in essence, where ex-
ercising jurisdiction would “degrade the dignity” of “foreign
sovereigns.” Id., at 136–137. As in the context of jus soli,
those peculiar circumstances arose most frequently in the
case of “foreign ministers.” See id., at 138–139. “[E]very
sovereign would hazard his own dignity,” after all, if his of-
ficials abroad were made to “owe temporary and local alle-
giance to a foreign prince.” Id., at 139.

12 TRUMP v. BARBARA
Opinion of the Court
The limits of that exception were carefully defined. Still
within the United States’ power were the “private individ-
uals” of a foreign nation who had “spread themselves
through [our territory] as business or caprice may direct.”
Id., at 144. “[I]t would be obviously inconvenient and dan-
gerous to society, and would subject the laws to continual
infraction,” Chief Justice Marshall explained, “if such indi-
viduals or merchants . . . were not amenable to the jurisdic-
tion of the country.” Ibid. “Nor can the foreign sovereign
have any motive for wishing such exemption,” he continued,
with respect to its sojourning subjects who were “not em-
ployed by” the sovereign or “engaged in national pursuits.”
Ibid. Just like jus soli, a sovereign’s jurisdiction made no
exception for those only temporarily present within the sov-
ereign’s territory. Instead, nearly everyone within the ter-
ritorial boundaries of the United States was “amenable to”
the Nation’s jurisdiction. Ibid.
The ordinary legal meaning of the text of the Clause thus
neatly captures the common law rule, with its broad reach
and narrow exceptions. The same groups included (and ex-
cluded) by jus soli were included (and excluded) by the con-
ventional understanding of jurisdiction. Excluded by both
were the children of foreign ministers and members of 19th-
century Indian tribes over whom the United States had
ceded a part of its territorial jurisdiction to preserve its re-
lationship with a foreign sovereign (or quasi-sovereign).
No such intersovereign concerns apply to children born of
parents unlawfully or temporarily present in the United
States; no foreign sovereign would “have any motive for
wishing” them outside this Nation’s authority. Ibid. Those
children are thus subject to the jurisdiction of the United
States. They satisfy both elements of the Citizenship
Clause: they are “born . . . in the United States” and “sub-
ject to the jurisdiction thereof.” Under the Constitution,
they are citizens at birth.

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Opinion of the Court
IV
Our precedent—the seminal case of United States v.
Wong Kim Ark, 169 U. S. 649 (1898)—confirms this rule.
A
For nearly two decades after the Fourteenth Amend-
ment’s ratification, the Executive Branch viewed the Citi-
zenship Clause as “simply an affirmance of the common law
of England and of this country.” Memorandum of Secretary
of State H. Fish to Mr. Marsh (May 19, 1871), in 2 Digest of
the International Law of the United States §183, p. 394 (F.
Wharton ed. 2d ed. 1887) (Digest). Under that view, “the
status of citizenship” was “fixed by the place of nativity, ir-
respective of parentage”—with the limited exception of “the
children of foreign ministers, and of other persons who may
be within our territory with rights of extraterritoriality.”
Ibid.
In 1872, for instance, Attorney General George Williams
was called upon to determine the citizenship of a child born
of Austrian parents only “temporarily residing” in New
York City. 14 Op. Atty. Gen. 154. Citing the Citizenship
Clause (and Bates’s 1862 opinion), Williams explained that
“a person born in this country, though of alien parents who
have never been naturalized, is, under our law, deemed a
citizen of the United States by reason of the place of his
birth.” Id., at 155. Thus the child “is a native of this coun-
try,” Williams concluded, “and as such was originally
clothed with American nationality.” Ibid. Secretary of
State Hamilton Fish agreed. See Memorandum to Baron
Lederer (Dec. 24, 1872), in 2 Digest 395–396. So did federal
courts. Like the Executive Branch, they saw the Clause as
merely “declaratory of the rule of the common law.” McKay
v. Campbell, 16 F. Cas. 161, 165 (No. 8,840) (DC Ore. 1871);
see also In re Look Tin Sing, 21 F. 905, 908–910 (CC Cal.
1884) (Field, J.); Ex parte Chin King, 35 F. 354, 355–356
(CC Ore. 1888).

14 TRUMP v. BARBARA
Opinion of the Court
As the era of Reconstruction faded, however, so too did
the promise of birthright citizenship. Uncertainty came
with the first Chinese Exclusion Act of 1882, ch. 126, 22
Stat. 58, and the election of President Cleveland, the first
Democrat to hold the office since the Civil War. See F.
Douglass, Speech (Apr. 16, 1885), in 4 Life and Writings of
Frederick Douglass 413 (1955). It was around this time
that the State Department began to deny citizenship to
those with “dual or doubtful allegiance,” 2 Digest 402; and
it was around this time that several scholars proposed a
new theory of the Clause, one based on “international law,”
F. Wharton, Conflict of Laws §10, p. 35 (2d ed. 1881) (Whar-
ton).
This new theory focused on the parents’ status, not the
child’s. It was only if a child’s parents were “domiciled in
the United States,” they argued, that the child was “inter-
nationally subject to the jurisdiction of the United States,”
as the Citizenship Clause (they said) required. Id., §12, at
41–42 (emphasis added); see also A. Morse, A Treatise on
Citizenship 248 (1881). These writers acknowledged that
the common law took a different view, see id., at 238, and
n. 1, and acknowledged “that the language of the [F]our-
teenth [A]mendment . . . is very broad,” A. Morse, Citizen-
ship of Children of Aliens Born in the United States, 30 Al-
bany L. J. 420 (1884). But they insisted that jus soli had
been “universally” rejected by other nations and had not
been made part of the Constitution. Ibid.
B
In Wong Kim Ark, this Court rejected that view, conclud-
ing that no “rule of international law” had qualified “the
ancient rule of citizenship by birth within the dominion.”
169 U. S., at 667.
At issue was the citizenship of Wong Kim Ark, born in
San Francisco to Chinese parents. See id., at 652. In
Wong’s telling, the case was not close. “[T]here can be no

15 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
just doubt,” he argued, “that the Amendment was intended
to be based upon the doctrine derived from the common law,
that the character of a natural born citizen is incidental to
birth only.” Brief for Appellee in United States v. Wong Kim
Ark, O. T. 1896, No. 132, p. 78 (filed by Counselor Ashton);
see also id., at 38 (discussing “the celebrated case of Lynch
vs. Clark”). The Government disagreed. It admitted that
“the opinions of the Attorneys-General, the decisions of the
Federal and State courts, and, up to 1885, the rulings of the
State Department all concurred in the view that birth in
the United States conferred citizenship,” based on “the com-
mon law doctrine of allegiance” and “the authority of the
decision of Chancellor Sandford in Lynch v. Clarke.” Brief
for United States in United States v. Wong Kim Ark, O. T.
1896, No. 132, p. 28. But the Executive no longer endorsed
that view. “[T]he common-law doctrine of England,” it ar-
gued, had in fact never been “the doctrine of the United
States,” and was not made the law by virtue of the Citizen-
ship Clause. Id., at 6.
In an opinion by Justice Gray, the Court rejected the Gov-
ernment’s position. Justice Gray explained that the Four-
teenth Amendment was merely “declaratory” of the “funda-
mental rule of citizenship by birth” that prevailed at
common law. 169 U. S., at 688. That “same rule,” he wrote,
“was in force in all the English Colonies”—“and continued
to prevail under the Constitution.” Id., at 658. And its con-
tours were clear. It excluded those recognized as exempt
“from the jurisdiction of this country”—the “children of am-
bassadors” and other representatives of foreign sovereigns,
as well as those born in the “alien nations” of Indian tribes.
Id., at 675, 681–683, 693.
All others were citizens at birth, whether born to perma-
nent residents or temporary visitors. See id., at 676, 687–
688. Indeed, Justice Gray noted, no one had even “con-
tested” this conclusion for “more than fifty years after the
adoption of the Constitution”—until the matter was

16 TRUMP v. BARBARA
Opinion of the Court
“elaborately argued” before the New York Court of Chan-
cery in Lynch v. Clarke. 169 U. S., at 664. And there the
question was “decided upon full consideration by Vice
Chancellor Sandford in favor of their citizenship.” Ibid.
“The same doctrine was repeatedly affirmed in the execu-
tive departments,” Justice Gray wrote, not to mention by
Kent and Binney—each of whom affirmed that “[t]he child
of an alien, if born in the country, is as much a citizen as
the natural-born child of a citizen.” Id., at 664–665. In
adopting the common law, Justice Gray explained, the Cit-
izenship Clause adopted this same rule. See id., at 676.
Justice Gray then turned to Schooner Exchange to con-
firm what the common law made clear. “The words . . . ‘sub-
ject to the jurisdiction thereof,’” he wrote, “must be pre-
sumed to have been understood and intended by the
Congress . . . in the same sense in which the like words had
been used by Chief Justice Marshall in the well known case
of The Exchange.” 169 U. S., at 687. On that understand-
ing, aliens who traveled to the United States for “business
or pleasure” received no “exemption from the jurisdiction of
the country.” Id., at 686. To the contrary, they were subject
to that jurisdiction for as long as they remained here—and
any children born to them were American citizens under
the Fourteenth Amendment. See id., at 682–688.
What the Court held in Wong Kim Ark was simple: 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, we
have repeatedly understood the rule of Wong Kim Ark to
guarantee citizenship to all children born in the United
States and subject to its power. See, e.g., United States ex
rel. Hintopoulos v. Shaughnessy, 353 U. S. 72, 73 (1957);
INS v. Rios-Pineda, 471 U. S. 444, 446 (1985). We see no
reason to depart from that view today.

17 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
V
The Government and the principal dissent share many of
our premises. They agree that the Citizenship Clause was
intended to incorporate the “background principles” of the
common law. Brief for Petitioners 15–16; see, e.g., post, at
2–3, 86 (T
HOMAS, J., dissenting). They agree that, under
the common law, “citizenship turns on allegiance.” Brief for
Petitioners 40; see, e.g., post, at 1, 17–18 (T
HOMAS, J., dis-
senting). And they agree that “Dred Scott departed from
that traditional, allegiance-based view of citizenship”—a
departure that Congress “repudiated” in the Clause. Brief
for Petitioners 16–17; see, e.g., post, at 1–2, 26–27 (T
HOMAS,
J., dissenting).
Where the Government and the principal dissent err is
with their definition of “allegiance.” They concede that Cal-
vin’s Case and Blackstone state the rule that prevailed be-
fore the Declaration of Independence—that a natural “alle-
giance” arises for all children who are “born here . . . under
the protection of the sovereign.” Tr. of Oral Arg. 64–65, 136;
see post, at 75–76 (T
HOMAS, J., dissenting). Yet according
to the Government and the principal dissent, “the United
States’ conception of allegiance”—at some unspecified point
in time—broke “from Great Britain’s.” Brief for Petitioners
16. (The Government has variously dated this change to
the late-18th century, see Tr. of Oral Arg. 137, the early-
19th century, see id., at 26, 76, and the Reconstruction era,
see id., at 3; the principal dissent declines to offer a date.)
Natural allegiance, they contend, was no longer sufficient
for citizenship; some greater quantum of allegiance was re-
quired.
How much? The Government offers a smorgasbord of for-
mulations: “primary allegiance,” “sufficient allegiance,”
“full allegiance,” “requisite allegiance.” Brief for Petitioners
12, 14, 15, 17, 19, 21, 23, 29, 32, 42. (The principal dissent,
for its part, seems to have settled on “primary allegiance.”
Post, at 17, 22, 25, 29, 58.) What all these formulations

18 TRUMP v. BARBARA
Opinion of the Court
supposedly share is that they turn on domicile—the place
of one’s permanent home. At some point before the ratifi-
cation of the Fourteenth Amendment, the argument goes, it
became “deeply rooted” in this country that “[d]omicile is
the key concept that creates allegiance.” Tr. of Oral Arg.
26.
The trouble is that there is scant evidence for this dra-
matically revisionist view. Certainly no one said that such
a change had occurred. Indeed, even as the antebellum
Americans hotly debated whether the Declaration of Inde-
pendence had abrogated one aspect of the British common
law—that natural allegiance was indefeasible, no matter a
person’s desire to expatriate—all agreed that such alle-
giance was owed in the first place. See Lynch, 1 Sand. Ch.,
at 657 (“perpetual allegiance . . . does not stand upon the
same reason or principle as the common law doctrine of al-
legiance by birth”); Murray v. Schooner Charming Betsy, 2
Cranch 64, 120 (1804) (noting unsettled question of
whether an American citizen “can divest himself absolutely
of ” his citizenship, but simply presuming that any “person
born within the United States” was a natural-born citizen).
The only evidence the Government and the principal dis-
sent can muster to show that some alternative (“primary”)
conception of allegiance displaced the common law is a “fu-
neral oration” for President Lincoln. Brief for Petitioners
23; see post, at 22–23. Ahistorical modifiers aside, the Gov-
ernment and the dissent identify no source that defined al-
legiance at birth as being based on domicile in the period
from 1776 to 1868.
3
Sources from that period instead de-
fined “allegiance by birth” just as the British did—as “the
tie or duty” owed by one who is “born within the dominions
——————
3
The principal dissent comes closest with the decision of New York’s
intermediate appellate court in Ludlam v. Ludlam, 31 Barb. 486 (N. Y.
Gen. Term 1860). When New York’s highest court heard the case, how-
ever, it did not follow the lower court’s reasoning; it relied instead on
Lynch v. Clarke. See Ludlam v. Ludlam, 26 N. Y. 356, 376 (1863).

19 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
and under the protection of a particular sovereign.” Inglis,
3 Pet., at 155 (opinion of Story, J.); see also, e.g., 1 N. Web-
ster, An American Dictionary of the English Language
(1828) (“[e]very native” owes a “natural or implied alle-
giance” “to the government under which he is born”).
Of course, some wished to change the rule. But even
those who wished to limit jus soli did not deny that children
born of temporary visitors owed natural allegiance to the
United States. They instead thought that domicile might
serve as a “reasonable qualification” to the common law
rule (namely, that citizenship derives solely from the
“[n]atural allegiance” owed “to the government of the terri-
tory of a man’s birth”). J. Story, Commentaries on the Con-
flict of Laws §§21, 48, pp. 22, 48 (1834) (Story).
The principal dissent (but not the Government) at times
seems to directly equate domicile and national citizenship.
See post, at 9–10, 12–14, 40–41. That is wrong. “It is, in
fact, a general axiom of international law, that there may
be domicil where there is no nationality, and nationality
where there is no domicil.” F. Wharton, Conflict of Laws
§40a, p. 47 (1872); see also A. Cockburn, Nationality 204
(1869). After all, one who establishes a domicile in a new
country does not automatically become a citizen thereof.
(He has to be naturalized.) Nor does he automatically lose
his prior citizenship. (He has to expatriate.) Thus, the prin-
cipal dissent ultimately acknowledges that domicile alone
was insufficient to make someone “formally” a “citizen.”
Post, at 9.
Of course, domicile was relevant to naturalization and ex-
patriation. But that by no means suggests it was a prereq-
uisite to national citizenship at birth. The principal dis-
sent’s reliance on cases concerning changes to a person’s
state citizenship is thus misplaced. See, e.g., post, at 6–7.
And the Government’s remaining support for the idea that
a domicile “qualification” to birthright citizenship was
“widely accepted” in the United States before the Civil War,

20 TRUMP v. BARBARA
Opinion of the Court
Brief for Petitioners 22, consists of a single state-court case
about citizenship in the Republic of Texas, a proposed (but
never adopted) model code for the State of New York, and
another treatise that discussed the subject only in terms of
“the principles of natural reason,” which it expressly distin-
guished from “[t]he common law,” 1 H. Tucker, Commen-
taries on the Laws of Virginia 57–58 (1836).
The congressional debates over the Civil Rights Act of
1866 and the Fourteenth Amendment confirm our view.
The principal dissent (and the Government) lean heavily on
a handful of ambiguous floor statements referencing “tem-
porary sojourners” and “foreigners.” See, e.g., Cong. Globe,
39th Cong., 1st Sess., at 1117 (Rep. Wilson) (“it may be that
children born on our soil to temporary sojourners” do not
fall within the Act’s scope (emphasis added)); id., at 2890
(Sen. Howard) (the Citizenship Clause “w[ould] not, of
course, include persons born in the United States who are
foreigners, aliens, who belong to the families of embassa-
dors or foreign ministers”). Far more frequent and explicit,
however, were statements embracing the common law. See,
e.g., id., at 498 (Sen. Trumbull); id., at 570 (Sen. Morrill);
id., at 1124 (Rep. Cook); id., at 1832 (Rep. Lawrence); id.,
at 2768 (Sen. Wade); id., at 2891 (Sen. Conness); id., at 3032
(Sen. Henderson). And the debates make clear that no
member of Congress seriously grappled with a domicile-
based carveout to the “fixed, certain, and intelligible rule[]”
of the common law. Lynch, 1 Sand. Ch., at 658.
For a Congress intent on putting the question of citizen-
ship “once and forever [to] rest,” Cong. Globe, 42d Cong., 1st
Sess. 575 (1871) (Sen. Trumbull), a domicile-based qualifi-
cation would have introduced significant uncertainty. Un-
like the easy-to-apply common law, it would be “difficult, if
not impossible, to lay down any general rule” of domicile-
based citizenship, as domicile “often depend[s] upon the cir-
cumstances of each case, the combinations of which are

21 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
infinite.” Inhabitants of Abington v. Inhabitants of North
Bridgewater, 40 Mass. 170, 177 (1839).
If Congress intended to hinge citizenship on each individ-
ual’s domicile—a question that “is sometimes a matter of
great difficulty to decide,” Story §45, at 43—it is reasonable
to expect there would have been at least some discussion of
the topic. Yet the word “domicile” appears just twice in the
discussion of the relevant provision of the Civil Rights Act.
See Cong. Globe, 39th Cong., 1st Sess., at 1160 (Rep. Shel-
labarger); id., at 1117 (Rep. Wilson). And it appears in only
one speech from the Citizenship Clause debates—as part of
an explanation of why State citizenship is distinct from na-
tional citizenship under the Constitution. See id., at 3031–
3032 (Sen. Henderson).
Perhaps recognizing the absence of ratification-era sup-
port for a domicile-based rule of national citizenship, the
Government and principal dissent both emphasize sources
from after the ratification of the Fourteenth Amendment.
They turn to the same international law treatises that un-
derpinned the Government’s attempts to limit birthright
citizenship in the 1880s.
4
This fundamentally revisionist
scholarship—and the post-1884 Executive Branch actions
that relied upon it—do not put in doubt the understanding
of the Citizenship Clause at the time of (and after) its rati-
fication. As Senator Trumbull explained in 1871, the
——————
4
The principal dissent suggests that any scholar who wanted “to pre-
vent the children of Chinese immigrants from being citizens . . . would
not have proposed a domicile requirement,” because “many Chinese im-
migrants were already domiciled here.” Post, at 72. But several of the
scholars upon which the dissent relies (most prominently Francis Whar-
ton) did not agree. In their view, Chinese children born in America were
“not citizens” because the Chinese—“as a population”—could not be
“domiciled in the United States.” Wharton §12, at 41–42. Indeed, the
Government made the same argument in United States v. Wong Kim Ark,
169 U. S. 649 (1898). See Brief for United States in United States v.
Wong Kim Ark, O. T. 1896, No. 132, p. 26 (asserting that “all Chinese
persons, as a rule, are but temporary residents of this country”).

22 TRUMP v. BARBARA
Opinion of the Court
Citizenship Clause recognized that “[e]very person born
within the jurisdiction” of the Nation was “a citizen of the
United States,” as had been true under “the common law of
this country as well as of England.” Cong. Globe, 1st Sess.,
42d Cong., at 575; see also, e.g., Memorandum of Secretary
of State H. Fish (1871), in 2 Digest 394; In re Look Tin Sing,
21 F., at 906, 909–910.
In any case, postenactment history cannot override the
text. If Congress intended to limit American citizenship to
the children of those domiciled in the United States, noth-
ing in the succinct language of the Citizenship Clause con-
veyed that design. Words appearing frequently in the Ex-
ecutive Order—“mother,” “father,” “lawful,” “temporary”—
are absent from the Clause. For a simple reason: they did
not matter. And while the Clause does ensure state citizen-
ship attaches for U. S. citizens in “the State wherein they
reside,” Amdt. 14, §1, the explicit invocation of residence for
state citizenship only highlights its absence from the crite-
ria for U. S. citizenship. See Slaughter-House Cases, 16
Wall. 36, 74 (1873) (a person can “be a citizen of the United
States without being a citizen of a State”).
When the principal dissent does grapple with the opera-
tive legal text—“subject to the jurisdiction” of the United
States—it has little to say. It argues only that a person is
“subject to the jurisdiction of the government of his domi-
cile.” Post, at 3. But that is not the question. The question
is whether a person is “subject to the jurisdiction” of the
government of the country in which he is physically pre-
sent, even if he is only there temporarily. He is (unless he
falls under one of the familiar exceptions, such as for am-
bassadors). For the reasons given by Chief Justice Mar-
shall in Schooner Exchange, the United States exercises

23 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
“full and complete power”—its “absolute and complete ju-
risdiction”—over temporary visitors. 7 Cranch 116, at 136.
5
To avoid these problems, the principal dissent spends
much of its time on the text of the Civil Rights Act. See
post, at 2–4, 23–31, 35–36, 48–49, 59, 67–68, 87, 88–89.
(J
USTICE ALITO does the same—albeit in service of a differ-
ent result. See post, at 13–18, 20–21, 24–25, 36 (dissenting
opinion).) The Civil Rights Act made citizens of “all persons
born in the United States and not subject to any foreign
power.” 14 Stat. 27. The principal dissent contends that a
person is “not subject to any foreign power” if (and only if )
he is “domiciled in” the United States, for it is then (and
only then) that “his home nation” is forbidden from regulat-
ing his conduct. Post, at 3, 13–14. J
USTICE ALITO contends
that a person is “not subject to any foreign power” if (and
only if ) no other country would “automatically” make him
a “national[],” whether he is domiciled here or not. Post, at
37.
Neither theory works. As to the principal dissent, it is
simply not true that domicile in a new nation severs one’s
ties to the old one. See Story §540, at 451 (“Nations
——————
5
The Government briefly contends that Elk v. Wilkins, 112 U. S. 94
(1884) adopted its unconventional understanding of jurisdiction. That is
mistaken. Elk addressed the citizenship of a child “born a member of one
of the Indian tribes.” Id., at 99. And Elk hewed to the very same common
law rule announced by Chancellor Kent in 1823—indeed, it even cited
him. See id., at 100. The Court reasoned that tribal members were “no
more ‘born in the United States and subject to the jurisdiction thereof ’ ”
than “children born within the United States, of ambassadors or other
public ministers of foreign nations.” Id., at 102. In both contexts, after
all, the United States had voluntarily “cede[d] . . . a part of its territorial
jurisdiction” to another sovereign (or quasi-sovereign). Wong Kim Ark,
169 U. S., at 686. As the Court later confirmed, Elk “concerned only
members of Indian tribes within the United States.” Wong Kim Ark, 169
U. S., at 682. Beyond that unique intersovereign relationship, the
Court’s decision “had no tendency to deny citizenship to children born in
the United States of foreign parents . . . not in the diplomatic service of
a foreign country.” Ibid.

24 TRUMP v. BARBARA
Opinion of the Court
generally assert a claim to regulate the rights, duties, obli-
gations, and acts of their own citizens, wherever they may
be domiciled.”). If the test truly is whether a person is
“amenable to the laws” of two governments at once, post, at
14 (T
HOMAS, J., dissenting), then it is a test that every child
born to a foreign parent fails—a result that even the prin-
cipal dissent cannot stomach. J
USTICE ALITO seems to rec-
ognize this bind, so he would create an ad hoc exception for
those whose parents have “done everything within their
power . . . to become Americans.” Post, at 27. He does not
explain how that exception can be squared with his view of
the text, which (to repeat) is that anyone “automatically”
made a “national[]” of his “parents’ native country” was not
entitled to citizenship under the Civil Rights Act.
6
Post, at
37. In our estimation, the Act raises more questions than
answers—and was replaced by the Fourteenth Amend-
ment, which “better” expresses the views of the Reconstruc-
tion Congress anyway. Cong. Globe, 39th Cong., 1st Sess.,
at 2894 (Sen. Trumbull). This Court said as much in Wong
Kim Ark. See 169 U. S., at 675, 688 (“any possible doubt”
about the meaning of the Civil Rights Act “was removed” by
the change to “the affirmative words” of the Citizenship
Clause).
For the dissents and the Government, Wong Kim Ark is
essentially irrelevant. They attempt to narrow that prece-
dent by noting that the Court’s opinion repeatedly referred
to the domicile of Wong’s parents. That is true. But “the
reasoning underlying” the holding of Wong Kim Ark cannot
——————
6
JUSTICE KAVANAUGH proposes a similar ad hoc exception to his own
interpretation of the Citizenship Clause. Under his rule, the Clause gen-
erally does not promise citizenship to children whose parents are “not
U. S. citizens.” See post, at 9 (opinion concurring in judgment and dis-
senting in part). Yet it must grant citizenship under the “facts and cir-
cumstances” presented in Wong Kim Ark—even though Wong’s parents
were not U. S. citizens. Post, at 5, n. 3. Like the exception proposed by
J
USTICE ALITO, JUSTICE KAVANAUGH’s exception is at war with his sup-
posedly “unifying” principle of the Clause. Post, at 9.

25 Cite as: 609 U. S. ____ (2026)
Opinion of the Court
be squared with a domicile requirement of the sort the Gov-
ernment envisions. Bucklew v. Precythe, 587 U. S. 119, 136
(2019). As we have already explained, the Court exhaust-
ively canvassed the text and history of the Citizenship
Clause. It traced an unbroken line from the English com-
mon law, into the founding and antebellum eras, and
through the debates, to the Clause’s ratification. Yet at no
point did the Court identify any evidence in the historical
record that the ratifiers of the Fourteenth Amendment
thought themselves to be imposing a domicile limitation.
In the end, it is the dissent in Wong Kim Ark that makes
the strongest case for a domicile-based theory of American
citizenship. There, Chief Justice Fuller resisted the appli-
cation of the English common law rule because it “recog-
nized no exception in the instance of birth during the mere
temporary or accidental sojourn of the parents.” 169 U. S.,
at 718. He admitted that, in England, “the question of dom-
icil[e] is entirely distinct from that of allegiance” because
“[t]he one relates to the civil, and the other to the political,
status.” Ibid. But he believed that “a different view as to
the effect of permanent abode on nationality ha[d] been ex-
pressed in this country.” Ibid. Under this different view,
the Fourteenth Amendment “prevent[ed] the acquisition of
citizenship by” “the children of aliens, whose parents owed
local and temporary allegiance merely, remaining subject
to a foreign power.” Id., at 721. The Government and to-
day’s dissenters agree. But this view commanded only a
dissent in 1898, and neither time nor circumstance has
changed the fact that it is not the law.
***
Again and again, the dissents cast the common law as
“feudal,” “medieval”—a remnant of “the darkness of the
middle ages.” Post, at 4–5, 45, 54, 64, 75–78 (opinion of
T
HOMAS, J.); see post, at 1 (opinion of GORSUCH, J.); post, at
2, 4, 27 (opinion of A
LITO, J.).

26 TRUMP v. BARBARA
Opinion of the Court
That was not the view of the Reconstruction Congress.
Where the dissents see feudalism, the Framers of the Four-
teenth Amendment saw emancipation. By the time of the
Glorious Revolution in 1688, in fact, the tie created by birth
was less a “duty” than a “right”—the foundation of the “an-
cient liberties” of “free-born subjects.” H. Muller, Subjects
and Sovereign 16–18, 57–58 (2017). That is why Blackstone
described the “privileges” owed to the “natural-born.” 1
Blackstone 361–362. That is why the colonists demanded
the “rights of Englishmen” more than 250 years ago. B.
Bailyn, The Ideological Origins of the American Revolution
192 (1967). And that is why abolitionists lauded the “an-
cient and universal” rule of citizenship by birth alone as “an
ordinance of Heaven.” Yates 36–37; see also M. Jones,
Birthright Citizens 89–107 (2018).
Citizenship, then and now, was the right to have rights—
to freely participate in our political community. The Fram-
ers of the Fourteenth Amendment extended that promise to
“every free-born person in this land.” Cong. Globe, 39th
Cong., 1st Sess., at 600 (Sen. Trumbull). We keep that
promise today.
The judgment of the District Court for the District of New
Hampshire is affirmed.
It is so ordered.

_________________
_________________
1 Cite as: 609 U. S. ____ (2026)
J
ACKSON, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 25–365
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES,
ET AL., PETITIONERS v. BARBARA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 30, 2026]
JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR joins
as to the introduction and Part I, concurring.
I join the Court’s opinion in full. I write separately to
respond to some of the themes in the principal dissent. De-
spite his longstanding endorsement of a “colorblind” Con-
stitution, J
USTICE THOMAS now surprisingly suggests that
the Citizenship Clause was a race-conscious remedial
measure, relating only to “freed slaves such as Dred Scott,”
post, at 56, and those who shared with them certain char-
acteristics, post, at 1 (“no other homeland”); post, at 21
(“called America home”). It is for this reason, he says, that
“children who were born in the United States but [to par-
ents] not domiciled here” are not entitled to claim birthright
citizenship. Post, at 3–4. But that narrow vision of the
Fourteenth Amendment bears little relationship to the his-
tory of its ratification. Even worse, J
USTICE THOMAS’s tell-
ing elides the entire point of the Second Founding: The Re-
construction Amendments were an anticaste,
antisubordination reset for the Nation, not a mere spot
treatment for the dark stain of slavery.
I
It is common ground that the Fourteenth Amendment
was “enacted . . . with the one pervading purpose of secur-
ing equal citizenship for the freed slaves.” Post, at 90

2 TRUMP v. BARBARA
J
ACKSON, J., concurring
(internal quotation marks omitted). Also true is the fact
that this Court “has time and again denied Americans that
promise.” Post, at 90.
1
But consensus about the Fourteenth
Amendment’s central motivation does not justify J
USTICE
THOMAS’s myopic treatment of it. The Amendment caused
a paradigm shift in the trajectory of our Nation; the teacher
who scolds a student for bullying a classmate hopes the stu-
dent learns the broader lesson of treating everyone with
kindness, not just that one kid.
In the aftermath of the Civil War, those who championed
the Fourteenth Amendment—both within and beyond Con-
gress—understood the assignment. Their work product
used “language that transcended race and region,” and
thereby “changed and broadened the meaning of freedom
for all Americans.”
2
Instead of the limited salve the princi-
pal dissent makes it out to be, the Citizenship Clause re-
flects this universalist approach.
A
Consider, first, the voices of those outside the chambers
of the Senate and the House of Representatives, whose ad-
vocacy and organizing culminated in the Fourteenth
——————
1
I suspect, though, that JUSTICE THOMAS and I disagree about when
and how that promise has been denied by this Court. My list is long (and
sadly only getting longer). For a sampling, consider: Civil Rights Cases,
109 U. S. 3 (1883); Plessy v. Ferguson, 163 U. S. 537 (1896); De Lima v.
Bidwell, 182 U. S. 1 (1901) (otherwise known as the Insular Cases);
Downes v. Bidwell, 182 U. S. 244 (1901) (same); Korematsu v. United
States, 323 U. S. 214 (1944); Milliken v. Bradley, 418 U. S. 717 (1974);
McCleskey v. Kemp, 481 U. S. 279 (1987); Parents Involved in Commu-
nity Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007); Shelby
County v. Holder, 570 U. S. 529 (2013); Students for Fair Admissions,
Inc. v. President and Fellows of Harvard College, 600 U. S. 181 (2023)
(SFFA); Louisiana v. Callais, 608 U. S. ___ (2026).
2
E. Foner, Reconstruction: America’s Unfinished Revolution 1863–
1877, pp. 257–258 (1988) (emphasis added).

3 Cite as: 609 U. S. ____ (2026)
J
ACKSON, J., concurring
Amendment.
3
First in the North (as States abolished slav-
ery), and then in the South (after Emancipation and the
Union’s victory in the Civil War), Black people who were
generally not permitted at the polls or in the halls of power
mobilized nevertheless to advance the universalist vision of
belonging and citizenship that eventually won the day.
The odds were long and the stakes were high. Indeed,
around the time they gained their freedom, former slaves
faced a crisis similar in relevant respects to the American
immigrant experience. With little in terms of possessions
and even less in terms of opportunities to make a living for
themselves and their families, freed Blacks were not ush-
ered warmly into the broader community (with apologies or
compensation), set up for success, or even given the rights
and privileges others enjoyed. Though they’d tilled the soil
for centuries and had labored to build every building, once
freed, they were basically treated as “strangers” in a not-
so-strange land.
4
This was not for lack of trying to survive and belong on
the freedmen’s part. They constructed churches, schools,
and mutual-aid societies—safe zones amidst America’s
racialized social and economic order.
5
Outside those
enclaves, however, freed Blacks were characterized as
unassimilable and incapable of full civic participation.
6
——————
3
Cf. Wolford v. Lopez, 609 U. S. ___, ___, n. 15 (2026) (JACKSON, J., dis-
senting) (slip op., at 28, n. 15) (explaining the importance of ensuring
that Black experiences and perspectives “are not (here again) excluded
from” our analysis of the relevant history).
4
African Methodist Episcopal Church v. City of New Orleans, 15 La.
Ann. 441, 443 (1860); see also ante, at 6–7 (majority opinion) (citing I.
Berlin, Slaves Without Masters 136–137 (1974)). Regarding freedmen in
the North prior to the Civil War, see also J. Horton & L. Horton, In Hope
of Liberty 125–176 (1997).
5
Ibid.
6
See D. Nieman, To Set the Law in Motion: The Freedmen’s Bureau
and the Legal Rights of Blacks, 1865–1868, p. 72 (1979) (Nieman); see
also K. Stampp, The Era of Reconstruction 1865-1877, p. 12 (1965)

4 TRUMP v. BARBARA
J
ACKSON, J., concurring
Their humanity was disregarded.
7
Serious doubts about
their claims to citizenship were also being sown.
8
The
reason was clear: “[A]n integrated, race-blind society under
the rubric of ‘all men are created equal’—required a societal
commitment to” antisubordination principles and practices,
i.e., “a well-resourced effort to undo the damage done to
black people by slavery.”
9
But “even the most ardent
opponents of slavery recoiled” from that prospect.
10
One solution that gained traction in the early 1800s was
to physically separate the freedmen and other Black people
from the general polity. Antislavery Northerners and pro-
slavery Southerners found common cause in the idea that
freed Blacks would surely “be happiest in a black-led repub-
lic, beyond the contempt of and competition with white
——————
(Stampp) (“In the nineteenth century most white Americans, North and
South, had reservations about the Negro’s potentialities—doubted that
he had the innate intellectual capacity and moral fiber of the white man
and assumed that after emancipation he would be relegated to an infe-
rior caste”).
7
See I. Wilkerson, Caste: The Origins of Our Discontents 153 (2020)
(Wilkerson) (“The crimes of homicide, of rape, and of assault and battery
were felonies in the slavery era as they are today . . . [b]ut the country
allowed most any atrocity to be inflicted on the black body”); see also,
e.g., id., at 147–148 (describing Alabama surgeon James Marion Sims,
widely known as “the founding father of gynecology,” who pioneered pro-
cedures by operating on Black female slaves without anesthesia; Sims
said the surgery was “ ‘not painful enough to justify the trouble’ ”); see
generally D. Smith, Less Than Human: Why We Demean, Enslave, and
Exterminate Others 119 (2012) (“The dehumanization of African Ameri-
cans did not end with the creation of the new nation in 1776, or with the
abolition of slavery in 1865. Books and pamphlets published during the
latter part of the nineteenth and early twentieth centuries continued to
assert that they were beasts”).
8
See O. Power-Greene, Against Wind and Tide: The African-American
Struggle Against the Colonization Movement 15–16 (2014).
9
See N. Guyatt, Bind Us Apart: How Enlightened Americans Invented
Racial Segregation 247 (2016) (Guyatt).
10
Ibid.

5 Cite as: 609 U. S. ____ (2026)
J
ACKSON, J., concurring
Americans.”
11
This vision of “paternal caste” prompted the
creation of the American Colonization Society, which estab-
lished the colony of Liberia and pushed for freed Blacks to
relocate there voluntarily.
12
Once freed Blacks were out of
sight, they would (thankfully) be out of mind, eliminating
any need for a racial reckoning in America.
Meanwhile, many States pushed the envelope, passing
“Black Laws” (in the pre-War North) and “Black Codes” (in
the post-War South), intending to make it difficult for freed
Blacks to live and work there.
13
Violence, too, played a sig-
nificant role in the isolation effort. Those who opposed abo-
lition banded together with those who resented the extra
competition in the job market to form marauding mobs,
——————
11
M. Jones, Birthright Citizens: A History of Race and Rights in Ante-
bellum America 37–38 (2018) (Jones); see also Guyatt 268–269.
By the middle of the century, colonization was so popular that it found
favor with leading abolitionists, including President Abraham Lincoln.
During an August 1862 meeting at the White House between Lincoln
and a “committee of free Negroes,” Lincoln described a fund Congress
had created “for the purpose of ‘colonizing people of African descent,’ a
cause he had long favored.” C. Sandburg, Abraham Lincoln: The Prairie
Years and the War Years 316 (1954). The problem, as Lincoln described
it to his visitors, was that “ ‘[y]our race suffers very greatly, many of
them, by living among us, while ours suffers from your presence.’ ” Ibid.
He continued: “ ‘Your race are suffering, in my judgment, the greatest
wrong inflicted on any people. But even when you cease to be slaves, you
are yet far removed from being placed on an equality with the white
race.’ ” Ibid. Colonization would allow free Blacks to thrive, without
forcing Whites to accommodate their demands for equal treatment and
legal protection. Interestingly, Lincoln held a universalist view of
citizenship despite his support for the colonization movement. See infra,
at 10–11.
12
Jones 37; see also E. Foner, The Second Founding: How the Civil War
and Reconstruction Remade the Constitution 12 (2019) (Foner, The Sec-
ond Founding); Guyatt 267, 271–272.
13
For Black Laws, see, e.g., K. Masur, Until Justice Be Done 16–18,
230–231 (2021) (Masur); Foner, The Second Founding 13. For Black
Codes, see, e.g., id., 47–49; Nieman 72–76; Masur 309–310; Wolford, 609
U. S., at ___–___ (slip op., at 26–32) (J
ACKSON, J., dissenting) (discussing
Black Codes).

6 TRUMP v. BARBARA
J
ACKSON, J., concurring
ransacking Black neighborhoods, homes, and stores.
14
And
local law enforcement? They did little to help. Before
Emancipation, per the federal Fugitive Slave Act, state of-
ficers pursued and arrested Blacks suspected of having es-
caped slavery. Afterwards, the cavalry looked the other
way when Black neighborhoods were terrorized by vigilante
violence.
15
The Ku Klux Klan would form, and then flour-
ish, starting in 1866.
16
——————
14
See D. Blight, Frederick Douglass: Prophet of Freedom 473 (2018)
(Blight); Jones 95, 105; K. Lewis, A Curse Upon the Nation: Race, Free-
dom, and Extermination in America and the Atlantic World 176, 182–
183 (2017). Frederick Douglass’s first-hand account from the Baltimore
of 1834 provides insight into White resentment over freed Blacks’ entry
into the labor market:
“The circumstance which led to [my being fired] was the committing of
an outrage upon me, by the white apprentices of the ship-yard. The fight
was a desperate one, and I came out of it shockingly mangled. I was cut
and bruised in sundry places, and my left eye was nearly knocked out of
its socket. The facts which led to this brutal outrage upon me illustrate
a phase of slavery which was destined to become an important element
in the overthrow of the slave system, and I may therefore state them with
some minuteness. That phase was this—the conflict of slavery with the
interests of white mechanics and laborers. In the country this conflict
was not so apparent; but in cities, such as Baltimore, Richmond, New
Orleans, Mobile, etc., it was seen pretty clearly. The slaveholders, with
a craftiness peculiar to themselves, by encouraging the enmity of the
poor laboring white man against the blacks, succeeded in making the
said white man almost as much a slave as the black slave himself.” F.
Douglass, Life and Times of Frederick Douglass 223–224 (1892).
15
See Masur 234–235. The violence, of course, continued after the War
and during Reconstruction. The Colfax, Louisiana, massacre of 1873, for
example, was “[t]he bloodiest single instance of racial carnage in the Re-
construction era.” Foner, Reconstruction, at 437. Two hundred and
eighty Black people were ruthlessly slaughtered on Easter Sunday.
“[T]he Colfax massacre taught many lessons, including the lengths to
which some opponents of Reconstruction would go to regain their accus-
tomed authority.” Ibid.
16
Foner, Reconstruction, at 342, 428–429; see also id., at 430 (“[T]he
Klan aimed to regulate blacks’ ‘station in society’”).

7 Cite as: 609 U. S. ____ (2026)
J
ACKSON, J., concurring
Still, most freed Blacks resisted the pressure to self-
deport.
17
Instead, many started organizing toward the
creation of the kind of Nation the colonizationists opposed—
one that guaranteed liberty and justice for all. In the
decades leading up to the ratification of the Fourteenth
Amendment, Black Americans organized and gathered at
more than 600 local and national conventions across the
country.
18
There, delegates erected the political and
intellectual scaffolding for the Fourteenth Amendment and,
later, for the Black Civil Rights Movement more
generally.
19
Critically for present purposes, these visionaries already
understood themselves to be American citizens. “The re-
frains ‘we are Americans’ and ‘we are citizens’ echoed in
conferences throughout the North.”
20
Moreover, “[b]irth-
right figured importantly” as “delegates frequently charac-
terized their status as that of native-born citizens.”
21
The
——————
17
See generally Brief for Historians Martha S. Jones et al. as Amici
Curiae 11–16.
18
See Colored Conventions Project, Conventions Records (Feb. 12,
2025), https://www.coloredconventions.org/about-records/ (archived at
https://perma.cc/3ZD2-3WHS) (collecting “minutes, proceedings, news-
paper articles, speeches, letters, transcripts, and images”); see also M.
Sinha, The Rise and Fall of the Second American Republic: Reconstruc-
tion, 1860–1920, p. 158 (2024); J. Fox, The Constitution of Black Aboli-
tionism: Reframing the Second Founding, 23 U. Pa. J. Const. L. 267,
272–334 (2021).
19
See E. Ball, Performing Politics, Creating Community: Antebellum
Black Conventions as Political Rituals in The Colored Conventions
Movement: Black Organizing in the Nineteenth Century (P. Foreman, J.
Casey & S. Patterson eds., 2021), pp. 155–157.
20
Jones 63; see also Address of the Colored National Convention to the
People of the United States, in Proceedings of the Colored National Con-
vention, Held in Rochester, July 6th, 7th, and 8th, 1853, p. 8 (“We ad-
dress you not as aliens nor as exiles, humbly asking to be permitted to
dwell among you in peace; but we address you as American citizens as-
serting their rights on their own native soil”).
21
Jones 63; see also Proceedings of the National Convention of Colored
Men, Held in the City of Syracuse, N. Y., Oct. 4, 5, 6, and 7, 1864, p. 42

8 TRUMP v. BARBARA
J
ACKSON, J., concurring
delegates argued that, as such, they had the requisite alle-
giance, so, at a minimum, the Federal Government owed
them the duty of protection.
22
The famed orator Frederick Douglass was one of these
delegates. Capturing the spirit of the moment, Douglass
proclaimed that Chief Justice Taney—the author of the ma-
jority opinion in Dred Scott v. Sandford, 19 How. 393
(1857)—“[could] do many things, but he [could not] . . .
change the essential nature of things.”
23
In the absence of
the artificial evils of slavery and racial subordination,
Douglass explained, “the glorious birthright of our common
humanity, will become the inheritance of all the inhabit-
ants of this highly favored country.”
24
Do note this: The citizenship thesis of the Colored Con-
ventions was thus not that some new status should be cre-
ated and conferred on freed Blacks. It was instead that
——————
(Syracuse Convention) (“[H]ere were we born, for this country our fathers
and brothers have fought, and here we hope to remain in full enjoyment
of enfranchised manhood, and its dignities”).
22
This was, of course, an invocation of the principle of “jus soli,” see
ante, at 4, which was well-known and widely accepted during this histor-
ical period. Delegates at the Colored Conventions drew upon its twin
duties—allegiance owed and protection given—to demand not only that
their rights as humans be honored, but also that “due attention should
be given to our needs.” Syracuse Convention 42. The delegates pointedly
observed that “[t]he laws which have made white men great, have de-
graded us, because we were colored, and because we were reduced to
chattel slavery.” Proceedings of the Colored People’s Convention of the
State of South Carolina, Held in Zion Church, Charleston, Nov. 1865, p.
23 (S. C. Convention). So, they argued, in slavery’s wake, the law needed
to make things right: It had to provide “[e]quality—expressed in such
language as equal liberty, equal justice, equal rights, and equal citizen-
ship.” Foner, The Second Founding, at 13; see also id., at 94 (“We claim
exactly the same rights, privileges, and immunities as are enjoyed by
white men—we ask nothing more, and will be content with nothing less”
(quoting The Colored Mass Convention held in Mobile (1867)).
23
Speech on the Dred Scott Decision (May 1857), in Two Speeches by
Frederick Douglass (1857) pp. 27–30, 31, 32–46.
24
Id., at 46.

9 Cite as: 609 U. S. ____ (2026)
J
ACKSON, J., concurring
freed Blacks already had a rightful claim to citizenship be-
cause they had been born on American soil. After all, the
Nation, from its founding, had “boldly proclaim[ed] that all
men are born free and equal, and that consequently life, lib-
erty, and the pursuit of happiness, are inherent in every in-
dividual, vested inalienably by natural birthright.”
25
No
ideal was more inherently American. Now, “rest[ing their]
cause on the republican standard of the revolutionary Fa-
thers,” freed Blacks were “knock[ing] at the doors of the
constitution and demand[ing] an entrance.”
26
And “[i]f . . .
asked what evidence [they] bring to sustain [their] qualifi-
cations for citizenship, [they would] offer them certificates
of . . . BIRTH and NATIVITY.”
27
Would the Nation live up
to its promise?
Such universalist appeals were a conscious choice. Yes,
Black Americans had suffered a singular wrong. And yes,
they had “‘fought and bled’” for the Union, paying a steep
price for their freedom.
28
But the delegates did not rest on
these laurels. Rather, they drew upon the moral and polit-
ical force of the universal principles that were already core
to the Nation’s identity.
That bears repeating: Freed Blacks did not advocate for
a unique set of rules that catered only to their situation.
Nor did they seek to advance their own position relative to,
or at the expense and exclusion of, other marginalized
groups. Instead, those whose gatherings helped galvanize
——————
25
Minutes of the State Convention of the Colored Citizens of the State
of Michigan, Held in Detroit (Oct. 26–27, 1843), in 1 The Proceedings of
the Black State Conventions, 1840–1865 (P. Foner & G. Walker eds.,
1979), p. 192; see also Foner, The Second Founding, at 94 (“The former
slaves . . . self-consciously viewed themselves as individuals ‘newly in-
vested with all the rights of an American citizen.’”).
26
Minutes of the State Convention of the Coloured Citizens of Penn-
sylvania, Convened at Harrisburg (Dec. 13–14, 1848), p. 20.
27
Ibid.
28
Post, at 1 (THOMAS, J., dissenting) (quoting 2 Life and Writings of
Frederick Douglass 256 (P. Foner ed. 1950)).

10 TRUMP v. BARBARA
J
ACKSON, J., concurring
the push for full equality understood that “[a] diverse origin
does not disprove a common nature, nor does it disprove a
united destiny.”
29
The firmest foundation for freedom
would require an anticaste reset—“both for his sake and for
ours”
30
—and would benefit all.
During his U. S. Senate candidacy, Abraham Lincoln de-
veloped a similar vision. In the lead-up to the now-famous
Lincoln-Douglas debates, Lincoln explained that the prom-
ise of liberty and equality in the Declaration of Independ-
ence “was held sacred by all, and thought to include all.”
31
Lincoln expressly and intentionally linked the fate of Black
Americans and immigrant groups (“among us perhaps half
our people who are not descendants at all” of the Founders),
and noted that the Nation’s future hinged on a universal
definition of citizenship that excluded neither.
32
He ex-
plained that the Declaration’s promise that “all men are
created equal” was the “electric cord . . . that links the
hearts of patriotic and liberty-loving men together,” regard-
less of race or descent.
33
The case was made. First, there was war. And then, the
delegates’ (and Lincoln’s) universalist view of citizenship
made its mark on the Constitution.
——————
29
F. Douglass, The Claims of the Negro Ethnologically Considered: An
Address, Before the Literary Societies of Western Reserve College, July
12, 1854, p. 34.
30
F. Douglass, Composite Nation, Delivered in the Parker Fraternity
Course, Boston, 1867, p. 21 (1867); see also ibid. (“I want a home here
not only for the negro, the mulatto and the Latin races, but I want the
Asiatic to find a home here in the United States, and feel at home
here. . . . Right wrongs no man”).
31
Abraham Lincoln, Speech at Springfield, Illinois (June 26, 1857), in
2 Collected Works of Abraham Lincoln, p. 404 (1953).
32
Abraham Lincoln, Speech at Chicago, Illinois (July 10, 1858), in 2
id., at 499 (1953).
33
Id., at 500.

11 Cite as: 609 U. S. ____ (2026)
J
ACKSON, J., concurring
B
The Civil Rights Act of 1866—the predecessor to the Cit-
izenship Clause, see ante, at 8–9—was initially drafted as
a spot treatment. Senator Lyman Trumbull’s first proposal
homed in on the freedmen and provided merely that “all
persons of African descent born in the United States are
hereby declared to be citizens of the United States.”
34
If
that language had prevailed, the view J
USTICE THOMAS as-
serts today might be well founded. See post, at 4–5 (finding
birthright citizenship’s “feudal” origins inconsistent with
Congress’s focus on “secur[ing] equal rights for the freed
blacks”).
But Senator Trumbull changed his mind. The day after
he submitted that first proposal, he requested to “withdraw
[the original] and . . . offer another in lieu of it to the same
purport, changing the phraseology.”
35
Consistent with the views espoused by activists, Trum-
bull’s new proposal adopted a distinctly universalist regis-
ter: “All persons born in the United States, and not subject
to any foreign power, are hereby declared to be citizens of
the United States, without any distinction of color.”
36
This
is the language Congress would eventually enact as part of
the Civil Rights Act of 1866. And the Civil Rights Act of
1866 would go on to become the basis for the Fourteenth
Amendment’s Citizenship Clause.
Senator Trumbull’s progression from specific to universal
was more than mere word choice. In the face of the virulent
anti-immigrant—and, in particular, the anti-Chinese and
the anti-Romani—sentiment of that era, language target-
ing just freed former slaves would have been the path of
least (or less) resistance. But Senator Trumbull, along with
those colleagues who took up the same mantle during the
——————
34
Cong. Globe, 39th Cong., 1st Sess. 474 (1866).
35
Id., at 498.
36
Ibid.

12 TRUMP v. BARBARA
J
ACKSON, J., concurring
ratification debates, expressly rejected that narrow fram-
ing.
Do not miss this context. Throughout the mid-19th cen-
tury, Chinese immigrants to America were often portrayed
as “‘coolies,’” a racist slur implying indentured servitude
and allegiance to a Chinese master.
37
Some Members of
Congress brought that sentiment to the Civil Rights Act’s
citizenship-related debates. Notably focusing his attention
beyond freed former slaves, Senator Edgar Cowan, for ex-
ample, argued that German immigrants’ children born in
Pennsylvania should be citizens, but Chinese immigrants’
children should not—because Germans and Chinese were
different.
38
In response, Senator Trumbull emphasized
that the law he had drafted drew no such distinctions.
39
Undeterred, Senator Cowan would warn again—this
time during debates on the Fourteenth Amendment—that
the Citizenship Clause would let Chinese immigrants
“overrun” California and “double or treble the population”
of that State.
40
Senator John Conness of California, where
anti-Chinese sentiment was arguably most pronounced, re-
sponded that “the children begotten of Chinese parents in
——————
37
J. Shugerman, An Originalist Case for Birthright Citizenship 77
U. C. L. J. (forthcoming 2026) (draft, at 3). When anti-Chinese sentiment
reached a fever pitch decades later, Congress enacted the Chinese Exclu-
sion Act and prohibited all Chinese immigration. See id., at 26. Justice
Harlan’s dissent in Plessy v. Ferguson—the “most celebrated Fourteenth
Amendment opinion” according the principal dissent, see post, at 37—
did not rise above such prejudice. Justice Harlan described Chinese im-
migrants as a “race so different from our own that we do not permit those
belonging to it to become citizens of the United States” and instead deem
them “absolutely excluded from our country.” 163 U. S., at 561 (dissent-
ing opinion). Justice Harlan thus drove a wedge between Black Ameri-
cans and other non-Black minorities.
38
Cong. Globe, 39th Cong., 1st Sess., at 498 (“The children of German
parents are citizens; but Germans are not Chinese”).
39
Ibid.; see also ante, at 9.
40
Cong. Globe, 39th Cong., 1st Sess., at 2891.

13 Cite as: 609 U. S. ____ (2026)
J
ACKSON, J., concurring
California . . . shall be citizens.”
41
In fact, he said, the Civil
Rights Act had already declared “that the children of all
parentage whatever . . . should be regarded and treated as
citizens of the United States.”
42
No Senator rose to agree
with Senator Cowan or dispute what Senator Conness had
said.
43
And no Senator said what the principal dissent says
today: that the text at issue conferred citizenship only on
freed Blacks and those in analogous situations.
44
The debates went similarly with respect to the Roma peo-
ple, who were referred to at the time as “gypsies.”
45
When
asked whether native-born Romani children would be birth-
right citizens of the United States under the proposed Civil
Rights Act, Senator Trumbull replied: “Undoubtedly.”
46
President Andrew Johnson apparently agreed. In his mes-
sage vetoing the Act, Johnson noted with disapproval that,
under the law, “the Chinese of the Pacific States, Indians
subject to taxation, the people called gypsies, as well as the
——————
41
Ibid.
42
Ibid.
43
See id., at 2891–2897.
44
See Shugerman, 77 U. C. L. J. (draft, at 26). In response to this his-
tory, the principal dissent notes that Francis Wharton, a late-1800s legal
scholar and State Department official, posited that because foreigners
“ ‘born in the United States’ of ‘parents not being here domiciled’ ” are not
subject to the jurisdiction of the United States, Chinese children born in
this country “ ‘are not citizens.’ ” Post, at 39 (quoting Conflict of Laws 41
(2d ed. 1881)). But J
USTICE THOMAS leaves out the motivation behind
Wharton’s contention: not the Constitution, but that the Chinese were
insufficiently “civiliz[ed]” and that “[t]o admit such rights to an emigrat-
ing nation, would be not merely to establish a foreign sovereign, but a
foreign barbarism, within our national domain.” Conflict of Laws 26
(1872).
45
William Blackstone called the Roma people “Egyptians” and branded
them “outlandish.” See 4 Commentaries on the Laws of England 165
(1770). (He did not exclude them from the common-law rule of birthright
citizenship, however. See id., at 166.) The proper term for this group
today is “Romani” or the “Roma people.” See Brief for Gerard N. Mag-
liocca as Amicus Curiae 1, n. 2.
46
Cong. Globe, 39th Cong., 1st Sess., at 498.

14 TRUMP v. BARBARA
J
ACKSON, J., concurring
entire race designated as blacks,” would be birthright citi-
zens.
47
Without making any changes to the bill or respond-
ing that Johnson was mistaken in his understanding of it
(or otherwise capitulating to Johnson’s views in any re-
spect), Congress overrode that presidential veto.
48
During the ratification debates, Senator Cowan took aim
at the Roma people too, characterizing them as undeserving
of birthright citizenship because they “wander[ed] in
gangs,” “infest[ed] society,” and “impos[ed] upon the simple
and weak everywhere.”
49
And again, Senator Conness dis-
missed Senator Cowan’s prejudices: “The only invasion of
Pennsylvania within my recollection was an invasion very
much worse and more disastrous to the State, and more to
be feared and more feared, than that of Gypsies. It was an
invasion of rebels [at Gettysburg].”
50
When ratified, the Citizenship Clause thus vindicated the
universalist vision of the delegates at the Colored Conven-
tions and their allies in Congress. Far from the principal
dissent’s representations, freed Blacks did not receive citi-
zenship as a reward for their military service or for having,
through no choice of their own, “no other homeland [and] no
allegiance to any foreign power.” Post, at 1. Instead, the
Amendment recognized their rightful claim to birthright
citizenship simply and solely by virtue of their having been
born on American soil. John Bingham—one of the Amend-
ment’s principal architects—said this clearly: The “rights
——————
47
A. Johnson, Veto Message (Mar. 27, 1866), in 6 Compilation of the
Messages and Papers of the Presidents 405 (J. Richardson, ed. 1897); see
Foner, Reconstruction, at 247–248.
48
E. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869,
p. 70 (1990).
49
Cong. Globe., 39th Cong., 1st Sess., at 2891.
50
Id., at 2892.

15 Cite as: 609 U. S. ____ (2026)
J
ACKSON, J., concurring
of citizenship” are universal because they are the “sacred
rights of person[hood].”
51
With this recognition, the U. S. Constitution finally got
an anticaste engine. And with it, the Nation gained a new
font of legitimacy and vitality.
II
Fast forward 150 years, to 2026. Section One of the Four-
teenth Amendment still contains that same universalist
language, consistent with its origins and the ratifiers’ in-
tent. So, respondents say, our Constitution confers citizen-
ship upon almost anyone and everyone who is born on
American soil—to include the children of immigrants and
temporary sojourners not domiciled in the United States—
just as it did at the time of the Fourteenth Amendment’s
ratification.
52
But the Government’s view (which the principal dissent
adopts) rejects this. Its argument focuses on the fact that
the Citizenship Clause had a particular purpose: to reverse
Dred Scott’s holding that Black Americans were not entitled
to citizenship. See Brief for Petitioners 13–14; post, at 1–2.
The reasoning is, in essence, that the Fourteenth Amend-
ment recognized freed Blacks as citizens because they had
“ ‘fought and bled’” in the Civil War, “had no other home-
land, owed no allegiance to any foreign power, and were
subject to no other authority.” Post, at 1; see also Brief for
Petitioners 16–18. Thus, the argument goes, the
——————
51
Id., at 1090. Bingham “believed the liberation of the slaves had
forced the United States to federalize the Bill of Rights and apply it to
all Americans.” Blight 479.
52
Brief for Respondents 7–23. At this point, the “almost” caveat per-
tains mainly to “the ‘children of ambassadors’ and other representatives
of foreign sovereigns.” Ante, at 15 (quoting United States v. Wong Kim
Ark, 169 U. S. 649, 675 (1898)). Congress addressed the founding-era
exclusion of “those born in the ‘alien nations’ of Indian tribes,” ante, at
15 (quoting Wong Kim Ark, 169 U. S., at 681), in 1924, with its enactment
of the Indian Citizenship Act, ch. 233, 43 Stat. 253.

16 TRUMP v. BARBARA
J
ACKSON, J., concurring
Amendment’s guarantees are for only Black Americans and
those who fit their fought-and-bled-for-country, no-other-
homeland, domiciled mold. Post, at 1–3, 90.
That contention is ahistorical for the reasons laid out in
Part I, supra, and those explained in the Court’s opinion.
In my view, it is also difficult to square with the notion of a
“color-blind” Constitution, which has loomed large in the
Court’s Fourteenth Amendment jurisprudence.
53
The
Court’s conception of a color-blind Constitution and the
Government’s (and principal dissent’s) cramped, group-spe-
cific reading of the Citizenship Clause are two sides of the
same coin, stemming from a basic misunderstanding of the
——————
53
See Allen v. Milligan, 608 U. S. ___, ___, ___ (2026) (per curiam) (slip
op., at 1, 3) (concluding, in light of “our colorblind Constitution,” that it
is likely unconstitutional for States to be ordered to draw maps that pro-
vide fair electoral opportunities for Black Americans, no matter the race-
conscious, remedial origin of the Fourteenth Amendment that made the
Voting Rights Act possible); SFFA, 600 U. S., at 213 (declaring that race-
conscious university admissions programs that promote diversity violate
the Fourteenth Amendment); see also Parents Involved, 551 U. S., at
747–748 (plurality opinion) (rejecting efforts to defend race-conscious
public-school placements against claims of unconstitutional discrimina-
tion brought by White students).
There are myriad ways in which the Court’s adherence to color-blind-
ness is mistaken, some of which I have addressed in other opinions. See
SFFA, 600 U. S., at 385 (J
ACKSON, J., dissenting); see also, e.g., id., at
206, 208 (majority opinion) (conflating “[e]liminating racial discrimina-
tion” with eliminating all “[d]istinctions between citizens solely because
of their ancestry” (internal quotation marks omitted)); Callais, 608 U. S.,
at ___ (slip op., at 17–18) (similar); Parents Involved, 551 U. S., at 747–
748 (declaring that “[t]he way to stop discrimination on the basis of race
is to stop discriminating on the basis of race,” including by ceasing any
race-conscious action designed to remediate the consequences of deeply
entrenched housing segregation). My concern now is that a fleeting na-
ture is among its many flaws. One wonders how the outcomes in the
above cases might have differed had the Court, like the Government and
the principal dissent today, relied upon the fact that the Fourteenth
Amendment was enacted to ensure that Black Americans are not treated
as second-class citizens, or had it at least acknowledged the connection
between the Amendment’s historical context and its remedial purpose.

17 Cite as: 609 U. S. ____ (2026)
J
ACKSON, J., concurring
relevant history. As I have shown in this opinion, the Four-
teenth Amendment is not color-blind; rather, its core prin-
ciple is that our Nation does not tolerate racial caste—i.e.,
the systemic subordination that many (even some who op-
posed slavery) had wished to perpetuate after the Civil
War.
54
So, the architects of the Second Founding did not
think or pretend that race didn’t matter. Quite to the con-
trary, they understood that race made an enormous differ-
ence to the lived experiences of all concerned—and to the
fate of our union. Indeed, it is for that very reason that a
radical restructuring was required.
55
The Citizenship
Clause applies universally precisely because such universal
application was necessary to achieve the Amendment’s own
race-conscious remedial purposes.
Putting a finer point on this: When colonizationists ob-
jected to changing their norms to accommodate the equal
citizenship and rights of freedmen, freed Blacks and their
allies organized to push for a Constitution that would bring
their own antisubordination vision to fruition. See supra,
7–10. That kind of ambitious transformation—nothing less
than the remaking of the soul of a Nation beset by rank,
entrenched race-based prejudice and inequity—did not
come for free, or purely by the say-so of those who claimed
to be “color-blind.” It required heavy lifting, a fundamental
shift—the very thing for which the Fourteenth Amendment
——————
54
“A caste system is an artificial construction, a fixed and embedded
ranking of human value that sets the presumed supremacy of one group
against the presumed inferiority of other groups on the basis of ancestry
and often immutable traits, traits that would be neutral in the abstract
but are ascribed life-and-death meaning in a hierarchy favoring the dom-
inant caste whose forebears designed it. . . . [T]hroughout human history,
across time and space, [at least] three caste systems have stood out to
this day. The tragically accelerated, chilling, and officially vanquished
caste system of Nazi Germany. The lingering, millennia-long caste sys-
tem of India. And the shape-shifting, unspoken, race-based caste pyra-
mid in the United States.” Wilkerson 17.
55
Stampp 12.

18 TRUMP v. BARBARA
J
ACKSON, J., concurring
stands: a repudiation of the notion that there is a “superior,
dominant, ruling class of citizens,” Plessy, 163 U. S., at 559
(Harlan, J., dissenting), and a willingness to see, and strive
to eliminate, all remaining vestiges of historical subjuga-
tion.
So the principal dissent is wrong to complain that the
Court “has repurposed the Fourteenth Amendment to pro-
tect . . . rights that the Reconstruction Congress never con-
templated.” See post, at 91. Delegates to the Colored Con-
ventions drew upon their own experiences to successfully
argue for a new Constitution—one that protected funda-
mental human rights, including an individual’s “‘right to
own his body and mind’” and “the right of personal security
and protection against injuries to our bodies or good
name.”
56
Thus, even in cases where the protagonist was not
a Black American, this Court’s Fourteenth Amendment
cases have focused, at bottom, on the same universal liberty
and equality interests that motivated the Fourteenth
Amendment itself. The question is (and always has been):
Does the affected individual or group enjoy equal dignity?
And the correct answer is (and has always been) to heed the
Fourteenth Amendment’s universalist, antisubordination
command. Our Nation did not undergo something as pro-
found and world-shifting as “Reconstruction” for naught.
***
After the Civil War, Fredrick Douglass frequently re-
flected on the events of the time through the lens of biblical
stories. In one speech, Douglass described how God leveled
Sodom and Gomorrah on account of sin, and how, in the af-
termath, Abraham stood atop a nearby mountain to survey
what remained. “[T]he orator used the image of Abraham
——————
56
S. C. Convention 27; see also ibid. (asserting that “our bodies have
been outraged with impunity”); Syracuse Convention 41 (“As a people,
we have been denied ownership of our bodies, our wives, homes, children,
and the products of our own labor”).

19 Cite as: 609 U. S. ____ (2026)
J
ACKSON, J., concurring
looking down upon the destroyed landscape to demand that
Americans look down upon their own recent self-destruc-
tion, and all but unjustified survival, and remember.”
57
Douglass declared that his own aim was to “‘show that na-
tions should have memories.’”
58
In the time since Douglass’s prescient observation, Amer-
icans have come to learn that fading memories are not the
only danger. The distortion of historical facts—retellings
that reimagine and repurpose past events to lend credence
to misbegotten aims—may be an even greater threat.
Yet here we are. The Government, the principal dissent,
and a handful of revisionist commentators now vigorously
promote an interpretation of the Citizenship Clause that di-
verges sharply not only from what the text says, but also
from the historical record as interpreted by the keepers of
“the call of remembrance” (trained historians).
59
What is
more, this alternative account pitches Black Americans
against immigrants when the advocates who promoted the
Fourteenth Amendment did no such thing. Freed Blacks
fought for the shared humanity of all people. And the Great
Emancipator eventually foresaw that the only path forward
that could prevent a return—in any form—to slavery and
race-based subordination was to link the fates of all.
——————
57
Blight 482.
58
Ibid.
59
Ibid.; see Brief for Historians Martha S. Jones et al. as Amici Curiae;
Brief for Race Law Scholars as Amici Curiae 4–12; Brief for Originalist
Scholars Evan D. Bernick et al. as Amici Curiae; Brief for Gerard N.
Magliocca as Amicus Curiae 4–7. A substantial amount of scholarly work
has been done to unearth historical truths about the facts and circum-
stances that gave rise to the Reconstruction Amendments. In addition
to the sources I have cited throughout this opinion, see, for example, D.
Faust, This Republic of Suffering: Death and the American Civil War
(2008); E. Mathisen, The Loyal Republic: Traitors, Slaves, and the Re-
making of Citizenship in Civil War America (2018); K. Stampp, America
in 1857: A Nation on the Brink (1990).

20 TRUMP v. BARBARA
J
ACKSON, J., concurring
Ultimately, then, it is the Government and JUSTICE
THOMAS who have “repurposed the Fourteenth Amend-
ment.” Post, at 91. By ignoring that our Constitution
stands firmly against caste and subjugation—on all axes
and in all manners—they deny the clear, universalist vision
shared and proclaimed by the Fourteenth Amendment’s
Framers: to “rebuild a shattered empire . . . to plant deep
and solid the corner-stone of eternal justice, and to erect
thereon a superstructure of perfect equality of every human
being before the law.”
60
Of course, the ultimate irony is that for all the talk about
the detestable Dred Scott decision, the Government and the
principal dissent propose a return to its core tenet. Their
bottom line is that, for certain people, being born on Amer-
ican soil will not suffice to confer citizenship. It is that odi-
ous conclusion that the Citizenship Clause plainly rejects,
as the Court explains. Ante, at 26. I add only that the Four-
teenth Amendment’s universalist aims should forever be
the death knell for this kind of claim—one that seeks to
make bloodline the marker of birthright. The America that
was reborn from the rubble of the Civil War simply does not
countenance that inequitable result. Thankfully, a major-
ity of the Court remembered this today, and has dutifully
preserved the most basic animating principle of our Na-
tion’s founding—that all human beings are created equal—
once more.
——————
60
Address by Congressman Thaddeus Stevens, Bedford, Pa., Sept. 4,
1866, in Cincinnati Commercial, Sept. 11, 1866, p. 2, col. 1.

_________________
_________________
1 Cite as: 609 U. S. ____ (2026)
Opinion of K
AVANAUGH, J.
SUPREME COURT OF THE UNITED STATES
No. 25–365
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES,
ET AL., PETITIONERS v. BARBARA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 30, 2026]
JUSTICE KAVANAUGH, concurring in the judgment and
dissenting in part.
Executive Order No. 14160 establishes new exceptions to
birthright citizenship for children born to foreign citizens
unlawfully or temporarily in the country. 90 Fed. Reg. 8449
(2025). The Court today holds that the Order violates the
Fourteenth Amendment to the Constitution. I respectfully
disagree with the Court’s constitutional holding. In my
view, the Executive Order does not violate the Fourteenth
Amendment. But the Order does contravene a federal
statute, 8 U. S. C. §1401(a). Congress could—consistent
with the Fourteenth Amendment—amend §1401(a) or
otherwise enact new legislation establishing exceptions to
birthright citizenship for children born to foreign citizens
unlawfully or temporarily in the country. But Congress has
not yet done so.
I
I first consider plaintiffs’ statutory argument. The
statutory analysis is straightforward, and the Court could
have (and in my respectful view, should have) decided the
case on that narrow ground.
Initially enacted in 1940, §1401(a) of Title 8 provides that
persons “born in the United States, and subject to the
jurisdiction thereof ” “shall be nationals and citizens of the

2 TRUMP v. BARBARA
Opinion of K
AVANAUGH, J.
United States at birth.” Nationality Act of 1940, §201(a),
54 Stat. 1138; Immigration and Nationality Act of 1952,
§301(a), 66 Stat. 235. That statutory language mirrors the
text of §1 of the Fourteenth Amendment, which was ratified
in 1868 and similarly provides: “All persons born . . . in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States.”
This Court’s 1898 Wong Kim Ark decision interpreted the
“subject to the jurisdiction” language of the Fourteenth
Amendment. United States v. Wong Kim Ark, 169 U. S.
649. That decision adopted a general rule of birthright
citizenship for those born in the United States—with four
disparate exceptions for “children of foreign sovereigns or
their ministers, or born on foreign public ships, or of
enemies within and during a hostile occupation of part of
our territory” and “children of members of the Indian
tribes.” Id., at 693; see also Elk v. Wilkins, 112 U. S. 94,
102 (1884). Importantly, the Wong Kim Ark decision
treated those four exceptions as a closed set for
constitutional purposes, meaning that Congress could not
create other exceptions to birthright citizenship, although
Congress could eliminate one or more of those four
exceptions. See 169 U. S., at 682, 693.
In 1940 and 1952, Congress employed the exact language
from the Fourteenth Amendment—“subject to the
jurisdiction thereof ”—in comprehensive new immigration
and naturalization laws that provided for birthright
citizenship. 54 Stat. 1138; 66 Stat. 235. The relevant
provisions are now codified at 8 U. S. C. §1401(a).
Because §1401(a) uses the same language as the
Fourteenth Amendment, the statute has long been
interpreted to adopt Wong Kim Ark’s general rule of
birthright citizenship, subject to the exceptions identified
in that case. If Congress in 1940 or 1952 wanted to create
new exceptions—and thereby test Wong Kim Ark’s
statement treating the four exceptions as a closed set—

3 Cite as: 609 U. S. ____ (2026)
Opinion of K
AVANAUGH, J.
Congress presumably would not have repeated the precise
language that this Court had interpreted in Wong Kim Ark
to contain only those four exceptions. Stated more
doctrinally, Congress “must be considered to have adopted
also the construction given by this Court to such language,
and made it a part of the enactment.” Shapiro v. United
States, 335 U. S. 1, 16 (1948) (quotation marks omitted); see
George v. McDonough, 596 U. S. 740, 752 (2022); Sekhar v.
United States, 570 U. S. 729, 733 (2013); Director, Office of
Workers’ Compensation Programs v. Greenwich Collieries,
512 U. S. 267, 275 (1994); United States v. Kozminski, 487
U. S. 931, 945 (1988); Lorillard v. Pons, 434 U. S. 575, 580–
581 (1978).
1
Importantly, moreover, from the time of those statutory
enactments in 1940 and 1952 all the way through 2025, the
Executive Branch consistently interpreted §1401(a) to
encompass only those Wong Kim Ark exceptions to
birthright citizenship. (The Government here does not
contest that historical point.) That long and consistent
Executive Branch interpretation further indicates that
§1401(a) incorporates only those exceptions. See Loper
Bright Enterprises v. Raimondo, 603 U. S. 369, 394 (2024)
(“interpretations issued contemporaneously with the
statute at issue, and which have remained consistent over
time, may be especially useful in determining the statute’s
meaning”).
In 2025, however, Executive Order No. 14160 sought to
add two new exceptions to birthright citizenship for
children born to foreign citizens who are either illegally or
temporarily in the United States. In doing so, the
Executive Order goes beyond what §1401(a) authorizes.
For the Executive Order to be lawful, therefore, Congress
——————
1
By the time of the 1940 and 1952 Acts, Congress had granted
statutory birthright citizenship for American Indians born in the United
States, thereby eliminating the American Indian exception as a matter
of statutory law. Ch. 233, 43 Stat. 253.

4 TRUMP v. BARBARA
Opinion of K
AVANAUGH, J.
would need to amend §1401(a) or otherwise enact new
legislation to encompass those two new exceptions. As of
now, Congress has not done so. Over the last 30 years,
Congress has considered numerous proposed bills to alter
birthright citizenship, but Congress has never actually
passed such legislation. See, e.g., Birthright Citizenship
Act of 2021, H. R. 140, 117th Cong., 1st Sess.; Citizenship
Reform Act of 1997, H. R. 7, 105th Cong., 1st Sess.
Unless and until Congress enacts such legislation, the
Executive Order contravenes the federal statute, §1401(a).
II
I next address the Fourteenth Amendment issue. As
revealed by the Court’s opinion with its detailed account of
history and precedent, and by the weighty and thoughtful
dissents, the constitutional issue is far more complicated
than the statutory issue. After reading those scholarly
opinions, one thing seems evident: The constitutional issue
is not straightforward, much as we might want it to be.
That is another reason why, in my respectful view, the
Court should have decided the case on the narrow and
straightforward statutory ground. In any event, because
the Court addresses the Constitution, and because I
respectfully disagree with its analysis of that highly
consequential issue, I too will briefly address it.
Ratified in 1868, the Citizenship Clause of §1 of the
Fourteenth Amendment provides: “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.”
In 1898, as noted above, Wong Kim Ark interpreted the
Fourteenth Amendment’s “subject to the jurisdiction”
language to provide a general right of birthright citizenship
with four disparate exceptions—for “children of foreign
sovereigns or their ministers, or born on foreign public
ships, or of enemies within and during a hostile occupation

5 Cite as: 609 U. S. ____ (2026)
Opinion of K
AVANAUGH, J.
of part of our territory” and “children of members of the
Indian tribes.” 169 U. S. 649, 693. Importantly, Wong Kim
Ark indicated that the four exceptions were a closed set, id.,
at 682, 693—meaning that there can be no additional
exceptions recognized based on subsequent circumstances
or developments. And the decision has consistently been
read that way, including by plaintiffs and the Court today.
2
But Wong Kim Ark’s treatment of the exceptions as a
“closed set” is incorrect, in my view. Considering the four
exceptions as a permanently frozen or closed set as of the
Fourteenth Amendment’s ratification in 1868—such that
there can be no subsequent exceptions recognized based on
new developments after 1868—is inconsistent with the
Court’s longstanding approach to constitutional
interpretation in a variety of areas.
3
To spell that out: The Constitution is an enduring
document, and its principles were designed to, and do,
apply to modern conditions and developments. The original
constitutional principles do not change absent a
constitutional amendment, but the relevant principles—
both the rules and exceptions alike—must be faithfully
applied not only to circumstances as they existed in 1787,
1791, and 1868, for example, but also to modern situations
that were unknown or unanticipated by the Constitution’s
Framers. Stated otherwise, the “meaning of rules is
constant. Only their application to new situations presents
a novelty.” A. Scalia & B. Garner, Reading Law 86 (2012);
see also Heller v. District of Columbia, 670 F. 3d 1244, 1275
(CADC 2011) (Kavanaugh, J., dissenting); A. Scalia, A
——————
2
At oral argument, plaintiffs repeatedly argued that the exceptions
recognized in Wong Kim Ark are a “closed set.” Tr. of Oral Arg. 81, 85,
112, 114, 116, 122, 124, 128, 129, 134; see also ante, at 9, 14–16, 20, 22
(majority opinion).
3
In my view, to be clear, the result in Wong Kim Ark was correct given
the facts and circumstances in that case. See post, at 27–28 (A
LITO, J.,
dissenting).

6 TRUMP v. BARBARA
Opinion of K
AVANAUGH, J.
Matter of Interpretation 45 (1997) (courts apply “original
meaning” to “new and unforeseen phenomena”); Tr. of Oral
Arg. 14–16, 115, 121–124, 127–131 (discussing those
interpretive principles).
In Fourth Amendment cases, for example, courts apply
the reasonableness requirement to searches of cars even
though cars did not exist in 1791 or 1868. See, e.g., Carroll
v. United States, 267 U. S. 132 (1925). In First Amendment
cases, courts apply free speech protections to the Internet
notwithstanding that the Internet did not exist in 1791 or
1868. See, e.g., Moody v. NetChoice LLC, 603 U. S. 707,
733–734 (2024). In Second Amendment cases, this Court
applies the Amendment to semi-automatic handguns even
though those did not exist in 1791 or 1868. Cf. District of
Columbia v. Heller, 554 U. S. 570, 628–629 (2008). From
the other direction, moreover, this Court recognizes
constitutional exceptions based on new circumstances when
the new exception is relevantly similar to those exceptions
that existed in 1791 or 1868. This Court’s constitutional
precedents do not treat the 1791 or 1868 exceptions as a
closed set “trapped in amber.” United States v. Rahimi, 602
U. S. 680, 691 (2024).
So ordinarily, both the relevant constitutional rule and
the constitutional exceptions (as of 1787, 1791, or 1868, as
the case may be) apply to new circumstances. As the Court
has said before, “[d]iscerning and developing the law in this
way is a commonplace task for any lawyer or judge.” Id., at
692 (quotation marks omitted). Indeed, at oral argument
in this case, many Members of the Court explored that

7 Cite as: 609 U. S. ____ (2026)
Opinion of K
AVANAUGH, J.
critical interpretive point at some length with counsel. See
Tr. of Oral Arg. 14–16, 115, 121–124, 127–131.
4
The Citizenship Clause of §1 of the Fourteenth
Amendment should be no different. The Court’s 1898
decision in Wong Kim Ark recognized four exceptions that
existed as of the Fourteenth Amendment’s ratification in
1868. Therefore, under basic tenets of constitutional
interpretation, other exceptions can be recognized when the
new exceptions (i) are based on subsequent developments
or circumstances that are new, i.e., largely unknown or
unanticipated by the Framers of the Fourteenth
Amendment, and (ii) are relevantly similar to the four
previously recognized Wong Kim Ark exceptions. See
generally, e.g., United States v. Hemani, 608 U. S. ___, ___
(2026) (slip op., at 7); Rahimi, 602 U. S., at 692; Moody, 603
——————
4
Amid their famous First Amendment debate in Ollman v. Evans, 750
F. 2d 970 (CADC 1984) (en banc), both Judge Bork and Judge Scalia
agreed on that bedrock interpretive point.
Judge Bork: “In a case like this, it is the task of the judge in this
generation to discern how the framers’ values, defined in the context of
the world they knew, apply to the world we know. The world changes in
which unchanging values find their application. The fourth amendment
was framed by men who did not foresee electronic surveillance. But that
does not make it wrong for judges to apply the central value of that
amendment to electronic invasions of personal privacy. The commerce
power was established by men who did not foresee the scope and intricate
interdependence of today’s economic activities. But that does not make
it wrong for judges to forbid states the power to impose burdensome
regulations on the interstate movement of trailer trucks. . . . We must
never hesitate to apply old values to new circumstances.” Id., at 995–
996 (concurring opinion).
Judge Scalia: “I am not in need of [a] reminder that the fourth
amendment must be applied to modern electronic surveillance, the
commerce clause to trucks and the first amendment to broadcasting. The
application of existing principles to new phenomena—either new
because they have not existed before or new because they have never
been presented to a court before—is what I would call not ‘evolution’ but
merely routine elaboration of the law.” Id., at 1038, n. 2 (opinion
dissenting in part) (citations omitted).

8 TRUMP v. BARBARA
Opinion of K
AVANAUGH, J.
U. S., at 733–734; Bucklew v. Precythe, 587 U. S. 119, 130–
134 (2019); United States v. Jones, 565 U. S. 400, 404–405
(2012); Brown v. Entertainment Merchants Assn., 564 U. S.
786, 790 (2011); Kyllo v. United States, 533 U. S. 27, 33–34
(2001).
Here, that interpretive principle would support
additional exceptions for children born to foreign citizens
unlawfully or temporarily in the country.
5
First, significant illegal immigration into the United
States is a new circumstance that was largely unknown as
of 1868 and that the Framers of the Fourteenth
Amendment could not have fully anticipated. And the
Framers likely would not have anticipated (and presumably
would not have intended) the odd result of granting a
substantial birthright citizenship benefit to (i) those foreign
citizens who violate U. S. immigration law and illegally
enter or overstay and then have children in the United
States over (ii) those foreign citizens who follow U. S.
immigration law and have children in their home countries
while seeking to lawfully immigrate to the United States.
Nor presumably would they have wanted to grant
constitutional birthright citizenship to children of foreign
citizens unlawfully in the country while simultaneously
denying constitutional birthright citizenship to children of
tribal American Indians. So too, the issue of temporary
visitors who give birth in the United States presents a new
and different circumstance than in 1868 given the
significant changes in immigration laws and travel.
And second, those two categories of foreign citizens—
namely, those unlawfully or temporarily in the country—
are relevantly similar to the four categories of persons
——————
5
When I refer to foreign citizens in this opinion, I am not referring to
those who are dual citizens of the United States and a foreign nation.
Persons born in the United States to parents who are dual citizens of the
United States and another nation are constitutionally entitled to
birthright citizenship.

9 Cite as: 609 U. S. ____ (2026)
Opinion of K
AVANAUGH, J.
recognized as exceptions in Wong Kim Ark. The only
apparent principle unifying the four disparate exceptions
listed by the Court in Wong Kim Ark—especially in light of
the exception for tribal American Indians—is that the
parents in all of those varied circumstances were not U. S.
citizens and were citizens of other nations, whether tribal
or foreign. Cf. post, at 3–22 (A
LITO, J., dissenting). An
exception for those born in the United States to foreign
parents unlawfully or temporarily in the country is
consistent with that principle and therefore with the
Fourteenth Amendment.
6
All of that said, as noted above, Congress in 1940 and
1952 enacted a statute, §1401(a), that at the time and since
has always been understood to authorize only the four
Wong Kim Ark exceptions. If Congress amends §1401(a) or
otherwise enacts a statute creating new exceptions along
the lines of the Executive Order for children born to foreign
citizens unlawfully or temporarily in the country, such a
statute, as I see it, would pass constitutional muster.
7
——————
6
Plaintiffs’ only proposed unifying principle for the four exceptions is
what they call the “fiction of extraterritoriality.” Tr. of Oral Arg. 81. The
Court today seemingly embraces that same principle. Ante, at 3, 10
(majority opinion). It is not clear what the “fiction of extraterritoriality”
means here. And it certainly does not support treating the four
exceptions as a permanently closed set. If plaintiffs’ point is to indulge
the “fiction,” to use their word, that certain foreign citizens such as
diplomats should be considered as being back in their home countries for
purposes of birthright citizenship, why does that not also apply to those
in the United States unlawfully or temporarily? And most starkly,
plaintiffs cannot convincingly explain their view that the children of
tribal American Indians are not constitutionally entitled to birthright
citizenship, while the children of foreign citizens unlawfully or
temporarily in the country are constitutionally entitled to birthright
citizenship. See Tr. of Oral Arg. 131–132.
7
Nothing in this opinion is intended to suggest how birthright
citizenship should be addressed as a policy matter.

10 TRUMP v. BARBARA
Opinion of K
AVANAUGH, J.
***
For those reasons, to reiterate, the Executive Order does
not violate the Fourteenth Amendment. But the Order does
contravene 8 U. S. C. §1401(a). Consistent with the
Fourteenth Amendment, Congress could amend §1401(a) or
otherwise enact new legislation establishing exceptions to
birthright citizenship for children born to foreign citizens
unlawfully or temporarily in the country. But Congress has
not yet done so.

_________________
_________________
1 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 25–365
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES,
ET AL., PETITIONERS v. BARBARA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 30, 2026]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
dissenting.
This Court’s decision in Dred Scott v. Sandford, 19 How.
393 (1857), would have permanently denied citizenship to
blacks as “a subordinate and inferior class.” Id., at 404–
405. After the Civil War, the Reconstruction Congress over-
ruled Dred Scott, first with the Civil Rights Act of 1866,
then with the Citizenship Clause of the Fourteenth Amend-
ment. Both the Civil Rights Act and the Citizenship Clause
guaranteed citizenship to persons born and domiciled in the
United States regardless of their race. Neither guaranteed
citizenship to persons who were not domiciled in the United
States.
Blacks were entitled to citizenship because they were
Americans. They had no other homeland, owed no alle-
giance to any foreign power, and were subject to no other
authority. They “fought and bled in the same battles,”
“gained and gloried in the same victories,” and were “liable
to be called upon to defend [America] in time of war” along-
side every other citizen. 2 Life and Writings of Frederick
Douglass 256, 266 (P. Foner ed. 1950) (Douglass). The Cit-
izenship Clause thus guaranteed them the “dignity and
glory of American citizenship,” so as to ensure that they
would never be treated as second class under the law.

2 TRUMP v. BARBARA
T
HOMAS, J., dissenting
Plessy v. Ferguson, 163 U. S. 537, 555 (1896) (Harlan, J.,
dissenting).
The same could not be said for the children of foreign tem-
porary visitors. Foreign temporary visitors were attached
to their home country, lacked similar bonds to this country,
and would not be called upon in time of war. Americans,
consistent with their settler ethos, believed that citizens
were the people who called a place home. Accordingly, dom-
icile—a person’s legal home—played a key role in both state
and national citizenship in America. A person was a “citi-
zen” of the state where he had his “domicil.” Barber v. Bar-
ber, 21 How. 582, 599 (1859). When foreigners temporarily
visited, their “national character” was unchanged. The Ve-
nus, 8 Cranch 253, 278–279 (1814). Such visitors were
“strangers,” not “subjects.” Id., at 278. A person born here
but domiciled in a foreign land was therefore considered “as
much a stranger to the country as his father.” 1 H. St.
George Tucker, Commentaries on the Laws of Virginia 57
(1836) (Tucker).
That is why, when Dred Scott went to court, he argued
that to be a “citizen,” “it is only necessary that he should
have acquired a domicil.” Brief for Plaintiff in Dred Scott v.
Sandford, D. T. 1855, No. 7, p. 6. (Brief for Dred Scott). Af-
ter this Court held that Scott was not a citizen because he
was black, Republicans in Congress, such as Representa-
tive John Bingham, stated that a person was a citizen if he
was “born and domiciled” in the United States. Cong.
Globe, 35th Cong., 2d Sess., 983 (1859). Scott was a citizen,
in their view, because he was born to Americans, not to
“temporary sojourners.” Cong. Globe, 35th Cong., 1st Sess.,
210 (1858) (statement of Rep. Bliss). As Frederick Douglass
had put it, the freedmen sought citizenship “not as aliens
nor as exiles,” but as “Americans.” 2 Douglass 255 (empha-
sis added).
Congress implemented the principle that citizenship fol-
lows birth and domicile in the Civil Rights Act of 1866 and

3 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
then in the Citizenship Clause of the Fourteenth Amend-
ment. The Civil Rights Act guaranteed citizenship to per-
sons who were both “born in the United States” and, as rel-
evant here, “not subject to any foreign power.” Act of Apr.
9, 1866, 14 Stat. 27. The phrase “not subject to any foreign
power” excluded from citizenship children of foreign tempo-
rary visitors, who were subject to the power of their home
nation. See, e.g., The Pizarro, 2 Wheat. 227, 246 (1817); The
Venus, 8 Cranch, at 278–279. The Citizenship Clause,
which the same Congress passed shortly after the Civil
Rights Act, was understood to have the same meaning. It
guaranteed citizenship to persons who were both “born . . .
in the United States” and “subject to the jurisdiction
thereof.” Amdt. 14, §1.
A person was subject to the jurisdiction of the govern-
ment of his domicile. “Domicil” was “the foundation of ju-
risdiction over persons.” 1 T. Twiss, The Law of Nations
239 (1861) (Twiss). The government of a person’s domicile
had broad power over that person, including with respect to
his personal affairs, his conduct abroad, his personal taxes,
and the mutual duties of protection and allegiance. So, as
the Senator who introduced the Citizenship Clause ex-
plained, “the word ‘jurisdiction,’ as here employed, ought to
be construed so as to imply a full and complete jurisdiction
. . . the same jurisdiction in extent and quality as applies to
every citizen of the United States now.” Cong. Globe, 39th
Cong., 1st Sess., 2895 (1866) (statement of Sen. Howard).
After all, Congress “would have no right to make citizens”
of “persons temporarily resident.” Id., at 572 (statement of
Sen. Trumbull).
The Citizenship Clause was consistently interpreted not
to apply to the children of foreign temporary visitors, who
were by definition not domiciled in the United States. Re-
gardless of administration or party, the Federal Govern-
ment for decades after ratification regularly denied claims
to citizenship by children who were born in the United

4 TRUMP v. BARBARA
T
HOMAS, J., dissenting
States but not domiciled here. When a child was “born” in
the United States to parents “domiciled” abroad, he was
“not, therefore, under the statute and the Constitution a
citizen of the United States by birth.” Letter from Sec. of
State T. Bayard to B. Winchester (Nov. 28, 1885), in 2 F.
Wharton, Digest of International Law 399–400 (2d ed.
1887) (Wharton Digest). Scholars agreed: A child “born
within the territory of the United States, of alien parents”
was not a citizen unless his parents were “permanently
domiciled within the United States.” W. Robinson, Notes
on Elementary Law 70 (1875). This Court agreed: The Cit-
izenship Clause “exclude[d] from its operation children of
. . . citizens or subjects of foreign States born within the
United States.” Slaughter-House Cases, 16 Wall. 36, 73
(1873). And, Congress agreed: The Citizenship Clause did
not extend to a child born here but “subject to any foreign
power.” See Enforcement Act of 1870, §18, 16 Stat. 144
(reenacting Act of Apr. 9, 1866, 14 Stat. 27). As Justice
Harlan would write in his dissent in Plessy v. Ferguson, 163
U. S. 537, the Citizenship Clause “gave citizenship to all
born or naturalized in the United States and residing here.”
Id., at 563 (emphasis added).
The Court offers a different account. American citizen-
ship, the Court says, was based on a medieval English “feu-
dal” principle, according to which each person “owed per-
sonal service to the lord of the soil” as his “master”—a
perpetual servitude that was “born with the child and only
ended in the grave.” 2 Cong. Rec. 3282 (1874) (statement of
Rep. Cox). Americans, the Court says, adopted this feudal
principle as a rule of American citizenship “with little fan-
fare.” Ante, at 4. Then, according to the Court, the Recon-
struction Congress codified that feudal principle with the
words “not subject to any foreign power” in the Civil Rights
Act and “subject to the jurisdiction thereof ” in the Citizen-
ship Clause. Then, the Court says, the Clause’s meaning

5 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
was definitively settled by dicta in United States v. Wong
Kim Ark, 169 U. S. 649 (1898).
With due respect, the Court’s account is not historically
accurate. The Court says that the Citizenship Clause in-
corporated the English feudal principle that subjects owed
lifetime servitude to the King who owned the soil on which
they were born, but Americans—unsurprisingly—rejected
this feudal principle. The Court’s theory of American citi-
zenship is based on the opinion of a New York assistant vice
chancellor in an inheritance dispute called Lynch v. Clarke,
1 Sand. Ch. 583, 584–585 (N. Y. Ch. 1844). Ante, at 6–10.
But, the assistant vice chancellor’s reasoning, whatever it
was worth, was not even followed in New York by the time
of the Citizenship Clause. Finally, the Court reasons that
dicta in Wong Kim Ark settled the meaning of the Clause.
But, Wong Kim Ark itself emphasized that its holding was
limited to persons domiciled in the United States. And,
scholars and government officials continued to agree after
Wong Kim Ark that the Citizenship Clause did not extend
to the children of foreign temporary visitors. The rule re-
mained what it always was: A child born on American soil
of “a stranger or traveler passing through the country, or
temporarily residing here,” was “not a citizen.” H. Black,
Handbook of American Constitutional Law 634 (3d ed.
1910).
The Court today takes the extraordinary step of holding
facially unconstitutional the President’s Order excluding
from citizenship the children of foreign temporary visitors
and illegal aliens. In doing so, the Court adds to the sad
history of the Fourteenth Amendment, which was designed
and understood to secure equal rights for the freed blacks
but has instead been repurposed for political projects that
the Reconstruction Congress did not support. Because
many potential applications of the President’s Order are
consistent with the original public meaning of the Citizen-
ship Clause, I respectfully dissent.

6 TRUMP v. BARBARA
T
HOMAS, J., dissenting
I
A
I begin with early American practices related to citizen-
ship and nationality, which inform what the Citizenship
Clause means.
In America, you were generally a citizen if you were born
here and this was your home. The legal word for home was
domicile. The concepts were so linked as to be taken as ef-
fectively synonymous at times, such that Justice Bushrod
Washington could say: “[C]itizenship means domicil—
home—permanent residence.” Gardner v. Sharp, 9 F. Cas.
1196, 1199 (No. 5,236) (CC NJ 1826). The same correspond-
ence has persisted throughout American history. See, e.g.,
Harding v. Standard Oil Co., 182 F. 421, 423 (CC ND Ill.
1910) (“‘Domicile’ and ‘citizenship’ are substantially synon-
ymous terms, in most cases”). Citizens were not the people
who were temporarily passing through a territory or who
happened to be born within it. Citizens were the perma-
nent members of the body politic—the people whose roots
were in a place, who called that place home, and who would,
if necessary, go to war for that place. The law of both state
and national citizenship reflected this principle.
Domicile was critical for state citizenship. As Chief Jus-
tice Marshall explained, a person was “a citizen of that
State” in which “he has a fixed and permanent domicil.”
Brown v. Keene, 8 Pet. 112, 115 (1834); accord, e.g., Eberly
v. Moore, 24 How. 147, 157 (1861) (“citizens” if “domi-
cil[ed]”); Barber, 21 How., at 599 (“citizenship” by “domi-
cil”); 3 J. Story, Commentaries on the Constitution of the
United States 565 (1833) (Story on Constitution) (“change
of citizenship” by “change of domicil”). Temporary visitors,
it followed, were not citizens. When a person went to a new
State on “a mere temporary visit, for a transient purpose,”
Justice Story explained, he could not thereby “claim to be a
citizen of such state.” Case v. Clarke, 5 F. Cas. 254, 255
(No. 2,490) (R. I. 1828). Instead, to become a “citizen of the

7 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
state to which he removes,” someone had to show “that he
ha[d] his domicil there.” Catlett v. Pacific Ins. Co., 5 F. Cas.
291, 296 (No. 2,517) (CC NY 1826). The same rule remains
in place today: as a general matter, “an individual is
deemed a citizen of the State of h[is] domicil.” Wachovia
Bank, N. A. v. Schmidt, 546 U. S. 303, 318 (2006).
Domicile was also critical for national citizenship. As this
Court stated the rule, when a person acquires a “domicil” in
a nation, he “becomes a member of the new society, at least
as a permanent inhabitant.” The Venus, 8 Cranch, at 278.
Domicile played a role in determining someone’s “national
character,” which would change whenever he “removes to a
foreign country [and] settles himself there” with an “inten-
tion permanently to reside there.” Id., at 279. He was a
“subject” of the nation where he was “domiciled.” The Pi-
zarro, 2 Wheat., at 246. He “follow[ed] the character of that
country, in war as well as in peace.” Ibid.; accord, e.g., H.
Halleck, Elements of International Law and Laws of War
144 (1866) (explaining that, in war, national character
turns on domicile); Hanger v. Abbott, 6 Wall. 532, 535
(1868) (same).
Thus, the view of the Executive Branch was that when a
person acquires an American “domicil,” the law “enjoins
upon other nations to respect him, in regard to protection,
as an American citizen.” Letter from Sec. of State W. Marcy
to B. Hülsemann (Sept. 26, 1853), in Correspondence Be-
tween the Secretary of State and the Charge D’Affaires of
Austria Relative to the Case of Martin Koszta 18 (1853)
(Koszta); see also Report of the Committee on Foreign Af-
fairs Concerning the Rights of American Citizens in Foreign
States, in Cong. Globe, 40th Cong., 2d Sess., App. 100
(1868) (Report of 1868). “Domicil confers a national charac-
ter; it does not allow any one who has a domicil to decline
the national character thus conferred.” Koszta 18. His sta-
tus “remains as long as the domicil is retained, and is

8 TRUMP v. BARBARA
T
HOMAS, J., dissenting
changed with it.” Id., at 20; see also Cong. Globe, 37th
Cong., 3d Sess., 992 (1863) (statement of Sen. McDougall).
This approach was consistent with this country’s settler
ethos. Daniel Webster wrote that “no government has car-
ried th[e] general presumption f[u]rther” than the United
States that a person attains a new “national character”
when he “settles” and “inten[ds] permanently to reside” in
a nation. Report of Secretary of State D. Webster (Dec. 23,
1851), H. R. Exec. Doc. No. 10, 32d Cong., 1st Sess., 2 (1860)
(Webster Report) (internal quotation marks omitted). Alt-
hough some nations would lay claim to anyone born in their
land or any descendant of their citizens, America viewed its
people as the people who built their lives here. A person
domiciled here “pays the same price for his protection as
native-born or naturalized citizens pay for theirs”: “In war
he shares equally with them in the calamities which may
befall the country,” “his services may be required for its de-
fence,” and “his life may be perilled and sacrificed in main-
taining its rights and vindicating its honor.” Koszta 20. See
also, e.g., The Dos Hermanos, 2 Wheat. 76, 98 (1817) (rea-
soning that “if upon his return to New-Orleans . . . he ac-
quired a domicil there . . . he became a re[-]integrated
American citizen”); The Mary and Susan, 1 Wheat. 46, 55,
n. f (1816) (discussing “the effect of domicil . . . upon na-
tional character”).
The United States thus did not claim as a citizen every
child born on its soil. Instead, pursuant to the principle
that children followed their parents’ domicile, a child was a
citizen of the place where his parents were domiciled. “[A]
child born of foreign parents is not, on principles of natural
reason, necessarily to be considered as a citizen of the coun-
try where he is born.” 1 Tucker 57 (emphasis deleted). If
he was “born in the country,” but “both his parents were
strangers not designing a permanent change of country,”
then he was “as much a stranger to the country as his fa-
ther.” Ibid. The rule was that “when a subject is traveling

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T
HOMAS, J., dissenting
or sojourning abroad,” he “continues under the protection
of ” his home nation, so “his children” are “an exception to
the rule which makes the place of birth the test of citizen-
ship.” Ludlam v. Ludlam, 31 Barb. 486, 503 (N. Y. Gen.
Term 1860); see also 37 Annals of Cong. 599 (1820) (state-
ment of Rep. Hemphill) (for “citizenship” to be “acquired by
birth,” a child must be born to “parents belonging to no
other nation or tribe”); Hardy v. De Leon, 5 Tex. 211, 236–
237 (1849) (a child born on American soil to parents domi-
ciled in the then-Republic of Texas was a citizen of Texas);
Political Code of New York §5 (1860) (citizenship requires
“domicil[e]” and excludes “children of transient aliens”).
The relationship between citizenship and domicile was a
matter of general law from which the political branches
could depart by statute, but those statutes also typically
tracked the domicile rule. So, Congress retained the pre-
rogative to set the terms for becoming a naturalized citizen
and could impose requirements beyond domicile. See Art.
I, §8, cl. 4. But, when Congress enacted naturalization stat-
utes, they too generally tracked the domicile requirement.
See, e.g., Act of Mar. 26, 1790, §1, 1 Stat. 103–104 (requiring
two years of residence for naturalization); Act of Jan. 29,
1795, 1 Stat. 414 (requiring five years of residence for nat-
uralization). And, even when a person was domiciled here
and not formally naturalized, he was already considered a
citizen for some purposes. Before being naturalized, domi-
ciliaries were “de facto though not de jure citizens of the
country of their domicil,” 1 R. Phillimore, International Law
262 (1854), or “domiciled citizen[s],” Koszta 20. Likewise,
for other purposes, national citizenship was not an inde-
pendent concept but simply derivative of state citizenship.
“Every citizen of a state,” it was often said, was “ipso facto
a citizen of the United States.” 3 J. Story, Commentaries
on the Constitution of the United States 565 (1833). In
these contexts, too, national citizenship required domicile

10 TRUMP v. BARBARA
T
HOMAS, J., dissenting
because state citizenship required domicile. See Part I–A,
supra.
Of course, birthplace closely correlated with domicile.
Most children were born where their parents were domi-
ciled and where, as a result, they were domiciled. The cor-
relation was especially strong in the early 19th century,
when crossing an ocean for a temporary visit was an unap-
pealing prospect for pregnant women. Because birthplace
was often a heuristic for domicile, it could be generally
stated that children were citizens of their place of birth. See
ante, at 3–6 (majority opinion). But, when the specific ques-
tion arose, a “reasonable qualification” to that general
statement excepted “children of parents, who were in
itinere in the country, or abiding there for temporary pur-
poses.” J. Story, Commentaries on the Conflict of Laws 48
(1834) (Story on Conflict of Laws).
B
The law of domicile is essential to understanding the cit-
izenship provisions of the Civil Rights Act and the Four-
teenth Amendment, so I briefly explain the relevant parts
of the law of domicile here.
1
Domicile meant legal home. The most common definition
of domicile was residence with the intent to permanently
remain. The Venus, 8 Cranch, at 278; accord, Story on Con-
flict of Laws §44, at 42 (“residence” and the “intention of
making it the home of the party”). A person’s residence was
the place where he lived. R. Phillimore, The Law of Domicil
16–18 (1847) (Law of Domicil). He had the intent to perma-
nently remain in that place if he planned to stay there in-
definitely. Ibid.
A person was not domiciled in a place simply because he
was temporarily present or born there. A person’s presence
in a place was merely “primâ facie” evidence that he was

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T
HOMAS, J., dissenting
domiciled there. Bruce v. Bruce, 2 B. & P. 229, 231, 126
Eng. Rep. 1251, 1252 (C. P. 1790); accord, e.g., Story on Con-
flict of Laws 45. Because a person’s temporary visit to a
place did not change his domicile, persons who were tempo-
rarily present in a place were regarded by the law not as
“subjects,” but as “strangers.” The Venus, 8 Cranch, at 278.
Accordingly, a person’s “place of birth” was only “primâ fa-
cie evidence of domicil.” President and Fellows of Harvard
College v. Gore, 22 Mass. 370, 375 (1827); accord, e.g., Over-
seers of Readington v. Overseers of Tewksbury, 2 N. J. L. 289
(1807) (“The place of the birth of a legitimate child is prima
facie the place of his settlement”).
A child took on the domicile of his parents. Because any
person incapable of establishing his own domicile had the
domicile “of that person, on whom he depends for support,”
it followed that generally “minor children ha[d] the settle-
ment of their fathers.” Inhabitants of Dedham v. Inhabit-
ants of Natick, 16 Mass. 135, 139 (1819); accord, 1 Twiss
238–239. So, if a child was born to foreigners who did not
permanently reside here, the child was not domiciled here.
See Law of Domicil 69; A. Dicey & J. Moore, Digest of the
Law of England 103 (1896) (Dicey & Moore).
Finally, each person had one and only one domicile.
“[E]very person must have a domicil somewhere,” and every
person “can have only one domicil.” Inhabitants of Abing-
ton v. Inhabitants of N. Bridgewater, 40 Mass. 170, 177
(1839); accord, D. Field, Outlines of an International Code
147 (2d ed. 1876) (Field). “The supposition, that a man can
have two domicils, would lead to the absurdest conse-
quences.” Inhabitants of Abington, 40 Mass., at 177. A per-
son can reside and intend to permanently remain in only
one place at a time. And, “[n]o person according to the Law
of Nations is without a Domicil.” 1 Twiss 239; accord, Field
147. So, if someone did not intend to remain where he was
at the moment, the law ascribed that person his last such
place as his domicile.

12 TRUMP v. BARBARA
T
HOMAS, J., dissenting
2
a
Because a person could have only one domicile, domicile
was a natural criterion for citizenship. In the 19th century,
dual citizenship was considered highly undesirable, if not a
contradiction in terms. “[T]he general view was that ‘no one
can have two countries.’” R. Mensel, Jurisdiction in Nine-
teenth Century International Law and Its Meaning in the
Citizenship Clause of the Fourteenth Amendment, 32 St.
Louis U. Pub. L. Rev. 329, 334 (2013) (alterations omitted).
Dual citizenship led to a number of foreign-policy concerns,
such as conflicting claims on the dual citizen during a war.
Report of 1868, at 100; Inhabitants of Abington, 40 Mass.,
at 177–178. Therefore, the United States did not “recog-
niz[e] a ‘double allegiance.’” H. R. Rep. No. 784, 43d Cong.,
1st Sess., 23 (1874). Instead, under “our law” a citizen was
“bound to be ‘true and faithful’ alone to our Government.”
Ibid.; accord, Savorgnan v. United States, 338 U. S. 491,
500 (1950) (“The United States has long recognized the gen-
eral undesirability of dual allegiances”). Because each per-
son had one and only one domicile, domicile-based citizen-
ship avoided the problems attendant to dual citizenship.
The principle that citizenship followed domicile also
made it more likely that citizens would be attached to their
country. As Alexander Hamilton envisioned it, the citi-
zenry were the people who would join together against any
threat—“a large body of citizens . . . who stand ready to de-
fend their own rights and those of their fellow-citizens.”
The Federalist No. 29, p. 185 (C. Rossiter ed. 1961); see also
Report of 1868, at 95. As Frederick Douglass saw it, citi-
zenship belonged to those who “fought and bled in the same
battles,” and “gained and gloried in the same victories.” 2
Douglass 266. And, as this Court put it, it is to “the citizen”
that “the country must look for its safety.” United States v.
Gettysburg Electric R. Co., 160 U. S. 668, 682 (1896). The
“dignity and glory of American citizenship,” Plessy, 163

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T
HOMAS, J., dissenting
U. S., at 555 (Harlan, J., dissenting), belongs to people who
have a meaningful “tie [to] this country,” Tuan Anh Nguyen
v. INS, 533 U. S. 53, 68 (2001). A domiciliary had, by defi-
nition, the sort of permanent attachment to a place that be-
fitted him to citizenship. See, e.g., Law of Domicil 17;
Koszta 20. A temporary visitor whose homeland was some-
where else, although he had legal rights and was entitled
to dignified treatment, lacked the ties to this country that
would make him fit for citizenship. He therefore was gen-
erally not eligible for naturalization, and his children were
likewise not naturally citizens of their birthplace.
1
b
Once a person became domiciled in a place, he was con-
sidered no longer subject to any foreign power. A person
was “subject” to the government of where he was “domi-
ciled.” The Pizarro, 2 Wheat., at 246; see also Gilman v.
Gilman, 52 Me. 165, 174 (1863); Inhabitants of Abington,
40 Mass., at 177–178. When a person traveled abroad, he
remained subject to the power of his home nation—much
like an American who travels abroad today remains subject
to the power of this Government. As this Court explained,
——————
1
Perhaps for this reason, although the United States welcomed set-
tlers with its domicile-based approach, the baseline in most of the west-
ern world was often that only the children of citizens could be citizens.
See, e.g., Aristotle’s Politics 102 (B. Jowett transl. 1920) (“[A] citizen is
defined to be one of whom both the parents are citizens”); 2 T. Aquinas,
Summa Theologica, Part I, 2d Part, Question 105, Art. 3, pp. 316–317
(Fathers of Eng. Dominican Province transl. 1952) (foreigners “were not
at once admitted to citizenship” because “if foreigners were allowed to
meddle with the affairs of a nation as soon as they settled down in its
midst, many dangers might occur, since the foreigners not yet having the
common good firmly at heart might attempt something hurtful to the
people”); E. de Vattel, Law of Nations 101–102 (1797) (“[I]n order to be
of the country, it is necessary that a person be born of a father who is a
citizen; for if he is born there of a foreigner, it will be only the place of his
birth, not his country”); P. Webster, Law of Citizenship 103–108 (1891)
(collecting examples).

14 TRUMP v. BARBARA
T
HOMAS, J., dissenting
if a person “goes into a foreign country” on a “temporary”
visit, he remains subject to the power of his home country.
Murray v. Schooner Charming Betsy, 2 Cranch 64, 120
(1804); accord, The Venus, 8 Cranch, at 278. When a person
moved to a country permanently, by contrast, he was no
longer subject to the power of the country from which he
originated: “[T]hose who reside[d]” in a new nation “from a
permanent cause” became “subject to” the new nation.
Ibid.; see also Schooner Charming Betsy, 2 Cranch, at 120;
Cong. Globe, 37th Cong., 3d Sess., at 992 (statement of Sen.
McDougall).
c
American legal authorities described a person as “subject
to the jurisdiction” of the government of his domicile. Hood
v. Hood, 93 Mass. 196, 199–200 (1865). Then, as now, gov-
ernments exercised different types of authority over tempo-
rary visitors and permanent residents. A government
“do[es] not apply the same Laws in all matters to persons
who are only temporarily resident, as it applies to persons
who are permanently resident within its territory.” 1 Twiss
217. So, while a government applied, among other things,
its ordinary criminal laws to temporary visitors, it had a
wide range of further powers only with respect to persons
domiciled within it. For that reason, when someone was
present in a territory but had a domicile elsewhere, alt-
hough he was still amenable to the laws of the host govern-
ment, that government would describe him as not “subject
to our jurisdiction.” Dorsey v. Dorsey, 7 Watts 349, 351–352
(Pa. 1838). In contrast, when a party made “his habitual
and usual domicil” in a place, he became (in 1860 parlance)
“subject to the jurisdiction” thereof. Mandeville v. Huston,
15 La. Ann. 281, 282 (1860).
2
——————
2
This characterization of jurisdiction as a function of domicile was
common. See, e.g., Harteau v. Harteau, 31 Mass. 181, 182–183 (1833)
(when parties “changed their domicile,” they were “not then subject to

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T
HOMAS, J., dissenting
A person was “subject to the jurisdiction” of the govern-
ment of his domicile because of the legal relationships that
followed from domicile. “The fact of domicil” was “one of the
highest importance to a person.” Inhabitants of Abington,
40 Mass., at 176. It was said that domicile “determines [a
person’s] civil and political rights and privileges, duties and
obligations; it fixes his allegiance; it determines his bellig-
erent and neutral character in time of war; it regulates his
personal and social relations, whilst he lives, and [it] fur-
nishes the rule for the disposal of his property when he
dies.” Ibid.
The legal relationships that followed from domicile—
which collectively made a person subject to the jurisdiction
of the government of his domicile—could be grouped into
four categories.
First, domicile determined which government had the
power to declare the law as to an individual’s most im-
portant personal affairs. Story on Conflict of Laws 51–52.
The law governing personal affairs included the laws of
marriage and divorce, which followed a couple’s domicile.
E.g., Hood, 93 Mass., at 199–200; Ditson v. Ditson, 4 R. I.
87, 93–94 (1856). It included laws governing the succession
of a person’s estate, which was distributed “according to the
law of distribution of the place of his domicil.” 2 J. Kent,
Commentaries on American Law 67 (1848); accord, Whar-
ton Treatise 1872, §20, at 34–35. And, it included laws gov-
erning a person’s age of majority, his capacity to contract,
his right to sue, and his rights with respect to moveable
property. See, e.g., 1 W. Burge, Commentaries on Colonial
and Foreign Laws 32 (1832); 1 Twiss 217–237; Inhabitants
of Abington, 40 Mass., at 176; Ditson, 4 R. I., at 93–94. Ju-
risdiction over these personal affairs had “exclusive
——————
the jurisdiction” of their original State); 1 Twiss 239 (“Domicil” was “the
foundation of jurisdiction over persons”); F. Wharton, Conflict of Laws
§35, p. 44 (1872) (Wharton Treatise 1872) (“domicil . . . fixes . . . the ju-
risdiction that attaches to the child”).

16 TRUMP v. BARBARA
T
HOMAS, J., dissenting
operation given to it only with respect to persons domi-
ciled.” 1 Twiss 237. Mere territorial presence was not
enough. See, e.g., Wharton Treatise 1872, §32, at 42–43; H.
Wheaton, Elements of International Law 140–142 (8th ed.
1836).
Second, domicile determined which government had ple-
nary jurisdiction over a person to regulate his actions any-
where. The law governing domiciliaries (unlike the law
governing temporary visitors) had “effect given to it beyond
the limits of [the] territory.” 1 Twiss 223; see also, e.g., In-
habitants of Hanover v. Turner, 14 Mass. 227, 231 (1817);
Wharton Treatise 1872, at 34–44, 519–521. And, as now, a
government could exercise personal jurisdiction over domi-
ciliaries while the domiciliaries were abroad and for their
conduct abroad. See id., at 519–521 (in personam judgment
has “extra-territorial force” when rendered by government
where “domiciled”); accord, e.g., id., at 481–482; Goodyear
Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 924
(2011).
Third, domicile determined which government had the
power to impose personal taxes on a person. The power to
impose “personal and income taxes” depended on “the
party’s domicil.” Wharton Treatise 1872, at 68; see also id.,
at 34. A sovereign could tax the property in its territory
belonging to anyone, but it could impose personal taxes—
such as a capitation tax—only on persons domiciled within
it. A person “not domiciled, is not within the jurisdiction of
the assessors.” Preston v. Boston, 29 Mass. 7, 12 (1831). He
“was not liable to taxation in the city for his poll, income
and personal property” because “his residence and domicile
was not in the city.” Id., at 10; accord, In re Hood’s Estate,
21 Pa. 106, 115 (1853) (describing the “rule” of “great antiq-
uity and of high obligation” that “taxation follows the dom-
icil”). So, while “transient travellers” were “not liable for
ordinary governmental or municipal taxes,” such taxes
could “be collected from domiciled aliens.” Wharton

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HOMAS, J., dissenting
Treatise 1872, at 48, 78. A nondomiciliary could recover
taxes as improperly collected because he was—regardless
of his territorial presence—“not subject to the jurisdiction”
of the taxing authority. Christ Church Hospital v. Phila-
delphia County, 24 Pa. 229, 231 (1855).
Fourth, domicile determined which government owed a
person protection when he went abroad. As this Court ex-
plained, “[t]he American citizen who goes into a foreign
country, although he owes a local and temporary allegiance
to that country, is yet, if he performs no other act changing
his condition, entitled to the protection of our government.”
Schooner Charming Betsy, 2 Cranch, at 120 (emphasis de-
leted); accord, Webster Report 2–3. So, before the Civil
War, the Federal Government intervened to protect Ameri-
cans abroad based on their domicile. See, e.g., Koszta 8–27.
A nonnaturalized domiciliary abroad was entitled to “pro-
tection as an American citizen.” Id., at 18. The Department
of State throughout the 19th century repeatedly confirmed
“the right of persons domiciled in the United States, but not
naturalized therein, to maintain internationally their sta-
tus of domicil, and to claim protection from this Govern-
ment in the maintenance of such status.” 2 Wharton Digest
487 (quoting 1885 Department of State instructions).
This protection abroad corresponded to the primary alle-
giance that the domiciliary owed his home government.
When a person went “abroad for a time,” “his own state still
possesse[d] a right to his allegiance.” W. Hall, The Foreign
Powers and Jurisdiction of the British Crown 1–2 (1894).
He “continue[d] under the obligations of [his home] alle-
giance, and his children, though born in a foreign country,
[we]re not born under foreign allegiance.” Ludlam, 31
Barb., at 503. Although he owed a partial and temporary
allegiance to his host nation, he was excused from military
service and other obligations “distinctively associated with
natural allegiance” because he owed “a prior and more bind-
ing allegiance to his own sovereign.” P. Hamburger,

18 TRUMP v. BARBARA
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HOMAS, J., dissenting
Beyond Protection, 109 Colum. L. Rev. 1823, 1847 (2009).
Domicile was for that reason typically a prerequisite to,
among other things, compulsory service in the militia. See
H. Halleck, International Law 385 (1861); Cong. Globe,
37th Cong., 3d Sess., at 991 (statement of Sen. Doolittle); A.
Swearer, Interpreting the Citizenship Clause Within the
Context of Contemporaneous Political Debates on Alien
Conscription and Expatriation, 2 Tex. A & M J. L. & Civ.
Gov. 73, 86, 95–96 (2025). And, although America more
than other nations supported the right to change that alle-
giance, it held that doing so required a change of domicile.
See Webster Report 2–3.
3
C
When Dred Scott sued for his freedom, he claimed to be a
citizen of Missouri, the State of his domicile. Scott, a black
man held in slavery, sued in a federal court, which could
hear the case only if it was between “Citizens of different
States.” U. S. Const., Art. III, §2. Scott argued that he was
a citizen of Missouri and that the defendant, Sandford, was
a citizen of New York. Scott, though, was not born in Mis-
souri; he was born in Virginia but domiciled in Missouri.
——————
3
The Court claims that “the Government and the dissent identify no
source that defined allegiance at birth as being based on domicile in the
period from 1776 to 1868.” Ante, at 18. It is the Court that focuses on
“allegiance,” but, in any event, many sources disprove the Court’s claim.
See, e.g., Ludlam v. Ludlam, 31 Barb. 486, 503 (N. Y. Gen. Term 1860)
(He “continues under the obligations of [his home] allegiance, and his
children, though born in a foreign country, are not born under foreign
allegiance”); Inhabitants of Abington v. Inhabitants of N. Bridgewater,
40 Mass. 170, 176 (1839) (“domicil . . . fixes his allegiance”); The Santis-
sima Trinidad, 7 Wheat. 283, 347 (1822) (Story, J., for the Court) (a per-
son cannot “throw off his own allegiance” without a “change of domicile”);
Hodgson v. DeBeauchesne, 14 Eng. Rep. 920, 932 (Privy Council 1858)
(“a settled domicile in a country, imports an allegiance to the country,
very different, from a mere obedience to its laws during a temporary res-
idence”); Inhabitants of Calais v. Inhabitants of Marshfield, 30 Me. 511,
520 (1849) (“consent or change of domicile” required for “allegiance”).

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HOMAS, J., dissenting
See D. Fehrenbacher, The Dred Scott Case: Its Significance
in American Law and Politics 240 (1978); Tr. of Record in
Dred Scott v. Sandford, D. T. 1854, No. 137, p. 10. He al-
leged that he was a Missouri citizen because he and his fam-
ily were brought there in 1838, “where they have ever since
resided.” Ibid. He argued that the term “citizen” described
“persons identified with the communities where they re-
side.” Brief for Dred Scott 5–6. In response to the argument
that blacks could not vote and therefore were not citizens,
Scott explained that “a person need not have acquired all
these rights, it is only necessary that he should have ac-
quired a domicil to enable him to sue as a ‘citizen.’” Id., at
6. “[C]itizenship,” Scott argued—in terms that would have
been familiar at the time—“means nothing but residence.”
Ibid. (internal quotation marks omitted).
Nobody disagreed with the premise that Scott was domi-
ciled in Missouri. Black slaves and freedmen alike were
unambiguously Americans. They were “not foreigners.”
Cong. Globe, 39th Cong., 1st Sess., at 1160 (statement of
Rep. Shellabarger). They were not “aliens.” Id., at 1117
(statement of Rep. Wilson). They “owed no foreign alle-
giance.” Id., at 530 (statement of Sen. Johnson); accord,
Dred Scott, 19 How., at 420. It was the dissimilarity of
American blacks to foreigners that Frederick Douglass em-
phasized in his call for recognizing the citizenship of blacks:
“We address you not as aliens nor as exiles, humbly asking
to be permitted to dwell among you in peace.” 2 Douglass
255 (emphasis added). Instead, “We are Americans.” Ibid.
So, “speaking the same language and being of the same re-
ligion, worshipping the same God, owing our redemption to
the same Savior, and learning our duties from the same Bi-
ble,” Douglass reasoned, “we shall not be treated as barbar-
ians.” Id., at 256. American blacks were “liable to perform
all the duties and support all the obligations of citizens.”
Cong. Globe, 39th Cong., 1st Sess., at 1117 (statement of
Rep. Wilson). They were domiciled in the United States,

20 TRUMP v. BARBARA
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HOMAS, J., dissenting
whether in slavery or freedom. See, e.g., 4 R. Phillimore,
Commentaries Upon International Law 96–97 (1861); ac-
cord, Law of Domicil 45; Brief for Dred Scott 6; Cong. Globe,
39th Cong., 1st Sess., at 1160 (statement of Rep. Shella-
barger). Dred Scott was therefore a citizen of Missouri.
This Court disagreed. It held that Scott was not a citizen
of Missouri—and therefore could not sue as a citizen—be-
cause of his race. According to the Court, blacks could not
be citizens because they were “considered as a subordinate
and inferior class of beings, who had been subjugated by the
dominant race, and, whether emancipated or not, yet re-
mained subject to their authority, and had no rights or priv-
ileges but such as those who held the power and the Gov-
ernment might choose to grant them.” 19 How., at 404–405.
As a result, the Court said, blacks were denied the basic
privileges of citizenship—including the right to “keep and
carry arms wherever they went” and to exercise the “full
liberty of speech in public and in private.” Id., at 417. They
could not sue in federal court as state “citizens.” Ibid.
Justices McLean and Curtis dissented. Justice McLean
would have ruled that Scott was “a citizen of Missouri” be-
cause he had a “permanent domicil in the State.” Id., at
531. As he stated the law of citizenship, “[b]eing a freeman,
and having his domicil in a State different from that of the
defendant, he is a citizen.” Ibid. Likewise, Justice Curtis
took the position, common at the time, see Part I–A, supra,
that national citizenship was simply based on state citizen-
ship. 19 How., at 581–582. He said that birthplace alone
is not sufficient to be a national citizen, but that a person
must be both born here and a citizen of a State. “[T]hose
persons born within the several States, who . . . are citizens
of the State, are thereby citizens of the United States.” Id.,
at 582. State citizenship, of course, was based on domicile.
See Part I–A, supra. Justice Curtis thus agreed that Scott
was a citizen of Missouri. 19 How., at 588.

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HOMAS, J., dissenting
Critics of the Dred Scott decision consistently took the po-
sition that citizenship should be based on birth and domi-
cile regardless of race. Domicile, after all, was colorblind.
In the words of Representative John Bingham of Ohio, soon
to become a central figure in the crafting of the Fourteenth
Amendment: “[A]ll free persons born and domiciled within
the jurisdiction of the United States, are citizens of the
United States from birth.” Cong. Globe, 35th Cong., 2d
Sess., at 983. Blacks such as Dred Scott called America
home, so they were citizens despite having been subordi-
nated based on their race. As Representative Shellabarger
would explain, “persons of African descent whose ancestors
were slaves” were entitled to “citizenship” because they
were “domiciled in our own country and continu[ed] here to
reside.” Cong. Globe, 39th Cong., 1st Sess., at 1160. Like-
wise, Representative Philemon Bliss condemned Dred Scott
and explained that all persons born here were citizens re-
gardless of their race—“excep[t]” for children born to “tem-
porary sojourners.” Cong. Globe, 35th Cong., 1st Sess., at
210.
Chief among the critics of Dred Scott was Abraham Lin-
coln. Soon after the Court released the decision, Lincoln
declared that “[t]he Dred Scott decision is erroneous” and
did “obvious violence to the plain unmistakable language of
the Declaration [of Independence].” His Speeches and Writ-
ings 355, 360 (R. Basler ed. 1946). The case exacerbated
national division over the issue of slavery and contributed
to Lincoln’s election as President. See, e.g., 2 C. Warren,
The Supreme Court in United States History 279–357
(1928). Lincoln vowed not to “acquiesce in it as a prece-
dent,” but instead to “do what we can” to have it “over-
ruled.” Lincoln, His Speeches and Writings, at 355.
During the Civil War, Union officials continued to define
citizenship based on birth and domicile. Lincoln’s Attorney
General Edward Bates wrote that the place of birth was
“prima facie” evidence of citizenship, Citizenship, 10 Op.

22 TRUMP v. BARBARA
T
HOMAS, J., dissenting
Atty. Gen. 382, 396 (1862), a rule that corresponded with
the familiar rule that “place of birth” was “prima facie” ev-
idence of domicile, President and Fellows of Harvard Col-
lege, 22 Mass., at 375; see also 10 Op. Atty. Gen., at 388
(“[E]very citizen of the United States is a citizen of the par-
ticular State in which he is domiciled”). The Lincoln Ad-
ministration deemed persons citizens if they were born and
domiciled in the United States. See 10 Op. Atty. Gen. 321,
322 (1862) (“Mrs. Preto . . . was born in New Jersey, and, no
doubt, at her father’s domicil,” so she was “therefore, born
a citizen of the United States”). Congress’s discussion of
who could be subject to a wartime conscription law focused
on the distinction between temporary “sojourners” and
those who settled here “with the intention of making their
home” here—only the latter were “fully and completely sub-
ject to the law.” Cong. Globe, 37th Cong., 3d Sess., at 992
(statement of Sen. McDougall). For the purposes of con-
scription, children of foreigners born here were “American
Citizens” if “permanently domiciled in the U. S.,” and could
avoid conscription if their parents had not established a
long-term residence in the United States.
4
Even at a me-
morial service for Lincoln, prominent statesman George
Bancroft confirmed that “every one born on [American] soil,
with the few exceptions of the children of travellers and
transient residents, owes [it] a primary allegiance.” Hon.
——————
4
Note of Major Gen. Hurlbut (Feb. 5, 1865), microformed on Microcopy
No. 53, Roll 16, Vol. 27–29, Mar. 19, 1865–Feb. 4, 1867, NAID:
188124588, p. 70 National Publications, https://catalog.archives.
gov/id/188124588?objectPage=70 (archived at https://perma.cc/N47D-
V2NP); see Letter from A. Atocha, Judge of the Provost Court, to Brig.
Gen. Bowen (Nov. 12, 1863), microformed on NARA Record Group 94:
Records of the Adj. Gen.’s Office, Series: Letters Received, 1863–Atocha,
A A–File No. G480, NAID: 85651033, pp. 3–5 (National Archives & Rec-
ords Admin), https://catalog.archives.gov/id/85651033?objectPage=3 (ar-
chived at https://perma.cc/6VN3-9L4W); see I. Wurman, Jurisdiction and
Citizenship, 49 Harv. J. L. Pub. Pol’y 315, 370–372 (2026).

23 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
G. Bancroft’s Oration at the Obsequies of Abraham Lincoln
(Apr. 25, 1865) The Pulpit and Rostrum, Nos. 34 & 35, p. 5.
D
After the Civil War, Congress vindicated Lincoln’s vow to
overrule Dred Scott—first with the Civil Rights Act, then
with the Citizenship Clause of the Fourteenth Amendment.
1
“Congress enacted the Civil Rights Act of 1866” to “repu-
diate Dred Scott.” United States v. Vaello Madero, 596 U. S.
159, 174 (2022) (T
HOMAS, J., concurring); see also E. Foner,
The Second Founding 63 (2020). The Civil Rights Act of
1866 confirmed that former slaves were citizens, but it did
not extend citizenship to foreign temporary visitors or Indi-
ans who were still within their tribes.
a
The Civil Rights Act guaranteed citizenship only to per-
sons born here and “not subject to any foreign power.” In
full, the citizenship provision of the Civil Rights Act, which
formed the basis for the Citizenship Clause at issue in this
case, stated:
“That all persons born in the United States and not
subject to any foreign power, excluding Indians not
taxed, are hereby declared to be citizens of the United
States.” 14 Stat. 27.
Temporary visitors domiciled in a foreign country remained
subject to a foreign power. See Part I–B–2, supra. The Civil
Rights Act therefore “intentionally excluded” children of
foreign temporary visitors. Brief for Former United States
Attorney General Edwin Meese III as Amicus Curiae 4.
The congressional debates were clarifying on this score.
When Senator Trumbull introduced the Civil Rights Act’s
citizenship provision, he stated that the language excluded
“persons temporarily resident” in the United States, whom

24 TRUMP v. BARBARA
T
HOMAS, J., dissenting
“we would have no right to make citizens.” Cong. Globe,
39th Cong., 1st Sess., at 572. He had considered limiting
the Civil Rights Act’s citizenship provision to persons “ow-
ing allegiance” to the United States, but he abandoned that
terminology because temporary visitors owed a partial alle-
giance to the United States—and he wanted to make clear
that the Act excluded them. Ibid. Likewise, when Repre-
sentative James Wilson spoke in support of the Act in the
House, he explained “that every person born in the United
States is a natural-born citizen,” except, “it may be,” “chil-
dren born on our soil to temporary sojourners.” Id., at 1117.
Others confirmed that the Civil Rights Act excluded the
children of temporary visitors. Representative Bingham
described the Civil Rights Act as “simply declaratory” of
pre-existing law, id., at 1291, which, he had already ex-
plained, required that a citizen be both “born and domi-
ciled” in the United States, Cong. Globe, 35th Cong., 2d
Sess., at 983. Bingham understood the Act to grant citizen-
ship only to children “of parents not owing allegiance to any
foreign sovereignty.” Cong. Globe, 39th Cong., 1st Sess., at
1291. Representative Martin Thayer agreed that the Act
required that a person “not ow[e] allegiance to a foreign
Power.” Id., at 1152. Of course, temporary visitors and
their children owed allegiance to their home country. See
Part I–B–2–c, supra. Unsurprisingly, then, the public in-
terpreted the Act to guarantee citizenship to “all persons
born in the United States,” except “those subject to foreign
governments,” a class which included those born to “foreign
parents temporarily sojourning in this country.” The Chi-
cago Republican, Mar. 30, 1866, p. 4; see also K. Lash,
Prima Facie Citizenship, 101 Notre Dame L. Rev. 101, 147
(2026).
b
The Civil Rights Act also excluded from citizenship “Indi-
ans not taxed.” This provision was intended to exclude

25 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
Indians in tribes, but to recognize the citizenship of Indians
who had left those tribes and joined the body politic. In
Senator Trumbull’s words, it excluded Indians who “belong
to the Indian tribes.” See Cong. Globe, 39th Cong., 1st
Sess., at 572 (statement of Sen. Trumbull). But, it included
Indians who were “no longer connected with their tribes”
and instead lived and “earn[ed] a livelihood in the white
settlements.” Ibid. (statement of Sen. Ramsey). Tribal In-
dians were “[c]onsidered virtually as foreigners,” but
“[w]henever they [we]re separated from those tribes, and
c[a]me within the jurisdiction of the United States so as to
be counted, they [we]re citizens of the United States.” Ibid.
Like temporary visitors, tribal Indians were not com-
pletely subject to the jurisdiction of the United States. The
United States did not have the right to impose personal
taxes on them—hence, “Indians not taxed.” See, e.g., Elk v.
Wilkins, 112 U. S. 94, 99 (1884); Goodell v. Jackson, 20
Johns. 693, 710 (N. Y. 1823). Their personal affairs re-
mained subject to the jurisdiction of their tribal nation.
“The right of self-government” was “secured to each tribe,
with jurisdiction over all persons and property within its
limits, subject to certain exceptions, founded on principles
somewhat analogous to the international laws among civi-
lized nations.” H. R. Rep. No. 474, 23d Cong., 1st Sess., p.
18 (1834); accord, 7 Op. Atty. Gen. 174–175 (1855). The
United States did not interfere “with the disposition, or de-
scent, or tenure of their property, as between themselves,”
or “prove their wills,” or subject them to the “laws of mar-
riage and divorce,” or subject them to the “laws of the
United States, against high treason.” Goodell, 20 Johns., at
710. Tribal Indians did not owe the United States primary
allegiance and did not receive from it complete protection.
See ibid.; T. Cooley, General Principles of Constitutional
Law 243 (1880); Elk, 112 U. S., at 99; id., at 119 (Harlan, J.
dissenting); H. R. Rep. No. 474, at 18–20; see also B. Ten-
nant, “Excluding Indians Not Taxed”: Dred Scott, Standing

26 TRUMP v. BARBARA
T
HOMAS, J., dissenting
Bear, Elk and the Legal Status of Native Americans in the
Latter Half of the Nineteenth Century, 86 Int’l Soc. Sci.
Rev. 24, 29 (2011) (“Native Americans were comparable to
foreigners because they did not fall completely under U. S.
jurisdiction”).
Indians in tribes were not covered by the Civil Rights
Act’s exclusion of persons “subject to any foreign power” be-
cause Indian tribes were not “foreign.” They were “domestic
dependent nations.” Cherokee Nation v. Georgia, 5 Pet. 1,
17 (1831). Thus, to preserve the status quo that tribal In-
dians were not citizens, Congress used the clause “not sub-
ject to any foreign power, excluding Indians not taxed.” 14
Stat. 27.
2
Although the Civil Rights Act by its terms overruled Dred
Scott, the Reconstruction Congress could not be sure that it
would endure. Some questioned whether Congress had the
constitutional power to enact the Civil Rights Act and thus
feared that a hostile court might neuter it. See Vaello
Madero, 596 U. S., at 175 (T
HOMAS, J., concurring). Others
worried that “as soon as the Democrats came into power,”
they would repeal the Act. H. Flack, The Adoption of the
Fourteenth Amendment 95 (1908); accord, Foner, The Sec-
ond Founding, at 68–71. Thus, when it passed the Civil
Rights Act, the Reconstruction Congress was already draft-
ing the Fourteenth Amendment. See id., at 55–92; K. Lash,
The Origins of the Privileges or Immunities Clause, Part II,
99 Geo. L. J. 329, 349 (2011). Two months later, Congress
would formally propose the Citizenship Clause of the Four-
teenth Amendment to the States. See Hurd v. Hodge, 334
U. S. 24, 32, n. 11 (1948). The States ratified the Amend-
ment in 1868.
The Citizenship Clause of the Fourteenth Amendment
constitutionalized the Civil Rights Act’s citizenship provi-
sion. The “main object” of the Clause was to settle “the

27 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
citizenship of freed [slaves].” Elk, 112 U. S., at 101. In full,
the Citizenship Clause provided:
“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 re-
side.” Amdt. 14, §1.
This language, all agreed, “unambiguously overruled this
Court’s contrary holding in Dred Scott v. Sandford, 19 How.
393 (1857), that the Constitution did not recognize black
Americans as citizens of the United States or their own
State.” McDonald v. Chicago, 561 U. S. 742, 807–808
(2010) (T
HOMAS, J., concurring in part and concurring in
judgment); see also Slaughter-House Cases, 16 Wall., at 73.
The “Citizenship Clause ‘forever closed the door on Dred
Scott’ and ‘constitutionalized the Civil Rights Act of 1866’”
by foreclosing a racial criterion for citizenship. Vaello
Madero, 596 U. S., at 175 (T
HOMAS, J., concurring) (quoting
K. Lash, The Fourteenth Amendment and the Privileges
and Immunities of American Citizenship 171 (2014)); see
also Slaughter-House Cases, 16 Wall., at 73; id., at 94–95
(Field, J., dissenting).
The Citizenship Clause did not change the Civil Rights
Act’s rule. The Clause and the Act were passed by the same
Congress during the same session. See Hurd, 334 U. S., at
32. Senator Howard, who proposed the Citizenship Clause,
believed that it hardly warranted discussion because Con-
gress had just enacted the same rule in the Civil Rights Act.
The Senate had “so fully discussed” “the question of citizen-
ship” as “not to need any further elucidation.” Cong. Globe,
39th Cong., 1st Sess., at 2890. He also stated that the Cit-
izenship Clause “is simply declaratory of what I regard as
the law of the land already.” Ibid. Senator Trumbull, who
had introduced the Civil Rights Act’s citizenship provision,
confirmed that “[t]he object to be arrived at is the same.”
Id., at 2893–2894. Senator Johnson had “no doubt” that “all

28 TRUMP v. BARBARA
T
HOMAS, J., dissenting
that this amendment provides is, that all persons born in
the United States and not subject to some foreign Power”
are “citizens of the United States.” Id., at 2893. To be a
“citizen,” Senator Howard said, meant to be “not a subject
of a foreign Power.” Id., at 2895.
The phrase “subject to the jurisdiction” was a familiar
way to describe the relation of a domiciliary to his home na-
tion. See Part I–B–2–c, supra. Lawyers in America would
have known that a person was “subject to the jurisdiction”
of the place of his domicile. Hood, 93 Mass., at 199–200.
Congressmen confirmed that the Clause should not be con-
strued to refer to the bare territorial power that a sovereign
exercises over all persons in its territory. “I understand the
words here, ‘subject to the jurisdiction of the United
States,’” Senator George Williams said, “to mean fully and
completely subject to the jurisdiction of the United States.”
Cong. Globe, 39th Cong., 1st Sess., at 2897. “[T]he word
‘jurisdiction,’ as here employed,” Senator Howard ex-
plained, “ought to be construed so as to imply a full and
complete jurisdiction”—“the same jurisdiction in extent and
quality as applies to every citizen of the United States now.”
Id., at 2895. The Citizenship Clause, Senator Trumbull
agreed, “means ‘subject to the complete jurisdiction
thereof.’” Id., at 2893 (emphasis added). So, although, “in
one sense, all persons born within the geographical limits
of the United States are subject to the jurisdiction of the
United States,” Senator Williams explained, some were not
covered by the Citizenship Clause because they “are not
subject to the jurisdiction of the United States in every
sense.” Id., at 2897. Each of these descriptions precluded
applying the Citizenship Clause to the children of tempo-
rary visitors, who—unlike children domiciled here—were
not subject to the jurisdiction of the United States in every
sense.
It was on this basis that Congressmen believed that the
Clause fixed in place the rule of the Civil Rights Act.

29 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
Senator Trumbull stated that the Citizenship Clause, like
the Civil Rights Act, would still exclude all persons subject
to a foreign power: “What do we mean by ‘subject to the ju-
risdiction of the United States?’ Not owing allegiance to an-
ybody else. That is what it means.” Id., at 2893. Senator
Howard agreed that the Citizenship Clause “w[ould] not, of
course, include persons born in the United States who are
foreigners, aliens, who belong to the families of embassa-
dors or foreign ministers accredited to the Government of
the United States.” Id., at 2890. And, shortly before the
Citizenship Clause was introduced, Senator William
Fessenden, a supporter of the Amendment, explained that
“persons may be born in the United States and not be citi-
zens of the United States,” then gave the example of “a per-
son [who] is born here of parents from abroad temporarily
in this country.” Id., at 2769; see Lash, 101 Notre Dame
L. Rev., at 151–152.
The Citizenship Clause, just like the Civil Rights Act,
also excluded from citizenship the children of tribal Indi-
ans—meaning Indians whose tribes retained sovereign au-
thority over them. “Certainly,” Senator Howard said, “gen-
tlemen cannot contend that an Indian belonging to a tribe,
although born within the limits of a State, is subject to this
full and complete jurisdiction.” Cong. Globe, 39th Cong.,
1st Sess., at 2895. As Senator Trumbull saw it, tribal Indi-
ans were excluded because they, like temporary visitors, re-
tained a primary allegiance to, and therefore were subject
to, their tribal nation: “It cannot be said of any Indian who
owes allegiance, partial allegiance if you please, to some
other Government that he is ‘subject to the jurisdiction of
the United States.’” Id., at 2893. He concluded: “It is only
those persons who come completely within our jurisdiction,
who are subject to our laws, that we think of making citi-
zens.” Ibid. Congress was satisfied that its language ac-
complished that result with the phrase “subject to the juris-
diction thereof.” As Senator Williams explained, “I would

30 TRUMP v. BARBARA
T
HOMAS, J., dissenting
not agree to this proposed constitutional amendment if I
supposed it made Indians not taxed citizens of the United
States. But I am satisfied that, giving to the amendment a
fair and reasonable construction, it does not.” Id., at 2897.
The Citizenship Clause used different wording from the
Civil Rights Act only to resolve an uncertainty that had
arisen out of the Act’s “Indians not taxed” language. Sena-
tor Trumbull explained that the category of “Indians not
taxed” was an attempted proxy for the Indians over whom
the United States lacked complete jurisdiction: The Civil
Rights Act was supposed to “designate a class of persons
who were not a part of our population,” so it was supposed
to exclude tribal Indians while including Indians who “come
within the jurisdiction of the United States.” Id., at 572.
The former could not be “taxed,” in the sense of personal
taxes. See Parts I–B–2–c, I–D–1–b, supra. But, the phrase
“excluding Indians not taxed,” Trumbull realized, could be
misunderstood to encompass Indians who had left their
tribal community and permanently settled outside of it, but
were not taxed for other reasons—such as because they
were “not possessed of wealth.” Cong. Globe, 39th Cong.,
1st Sess., at 2894. Similarly, making citizenship depend on
taxation could allow States to manipulate citizenship eligi-
bility by changing their tax practices. Id., at 2895 (state-
ment of Sen. Howard).
The phrase “subject to the jurisdiction” solved the prob-
lem because it avoided excluding from citizenship the chil-
dren of nontribal Indians who for whatever reason were not
taxed. Tribal Indians were not in “any sense” “subject to
the complete jurisdiction of the United States.” Cong.
Globe, 39th Cong., 1st Sess., at 2893 (statement of Sen.
Trumbull). Like temporary visitors, tribal Indians were
“not subject to our jurisdiction in the sense of owing alle-
giance solely to the United States.” Id., at 2894. Their in-
ternal affairs—including marriages, family matters, intes-
tacy, and payment of personal taxes—were regulated by

31 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
their tribes. See Part I–D–1–b, supra. Thus, “members of
Congress understood [the Fourteenth Amendment’s] lan-
guage to be more precisely describing, not substantively al-
tering, the set of individuals excluded from birthright citi-
zenship by the Civil Rights Act.” M. Shawhan, Comment,
The Significance of Domicile in Lyman Trumbull’s Concep-
tion of Citizenship, 119 Yale L. J. 1351, 1353 (2010); accord,
Lash, 101 Notre Dame L. Rev., at 159.
With respect to temporary visitors from foreign nations,
the phrase was believed to accomplish the same object as
the Civil Rights Act’s exclusion of those “subject to” a for-
eign power. Children born to temporary visitors owed alle-
giance to another government—the country of their domi-
cile—so they were not subject to the jurisdiction of the
United States. “[T]he Citizenship Clause simply states in
positive terms (‘subject to the jurisdiction thereof ’) what
the Act stated in negative terms (‘not subject to any foreign
power’).” Brief for Sen. Eric Schmitt et al. as Amici Curiae
18.
E
1
The evidence from the decades following ratification con-
firms that the Citizenship Clause was understood to ex-
clude the children of temporary visitors. There was fre-
quently expressed, enduring, and widespread agreement,
from the Reconstruction Congress through the end of the
19th century (and even into the 20th), that the Citizenship
Clause did not guarantee citizenship to persons not domi-
ciled here. The Executive Branch, Congress, courts, States,
lawyers, scholars, and commentators generally shared this
understanding.
a
The Executive Branch understood the Citizenship Clause
to exclude the children of temporary visitors. In 1873,

32 TRUMP v. BARBARA
T
HOMAS, J., dissenting
President Grant’s Attorney General George Williams inter-
preted it to apply only to persons over whom the United
States had complete jurisdiction: “[T]he word ‘jurisdiction’
must be understood to mean absolute or complete jurisdic-
tion, such as the United States had over its citizens before
the adoption of this amendment.” 14 Op. Atty. Gen. 295,
300. It therefore excluded “[a]liens” over whom the United
States had “only” a “limited” jurisdiction, even if they were
“born here.” Ibid.
5
Across administrations, the Executive Branch took the
same position. A child born on American soil was not an
American citizen when he was “domiciled in” a foreign
country. Letter from Sec. of State T. Bayard to B. Winches-
ter (Nov. 28, 1885), in 2 Wharton Digest 399–400. By virtue
of his foreign domicile, he was “on his birth ‘subject to a for-
eign power’ and ‘not subject to the jurisdiction of the United
States.’” Ibid. “A child born in this country to a foreign
father, when taken by his father abroad, acquires the fa-
ther’s domicil and nationality.” Letter from Sec. of State F.
Frelinghuysen to M. Cramer (June 4, 1883), in id., at 397.
These statements were not mere abstract positions, but the
Executive Branch’s operating rule of decision for decades.
When the children of temporary visitors born on Ameri-
can soil claimed to be citizens based on the Citizenship
Clause, the Executive Branch repeatedly denied their
claims to citizenship:
 Joseph Speck was denied citizenship after being born
in the United States to parents domiciled in Switzer-
land. In 1878, Speck claimed to be a citizen after his
——————
5
This interpretation was shared by Ebenezer Hoar, a prior Attorney
General for President Grant. Hoar too believed that, under the Citizen-
ship Clause, “a child born within the United States of parents who are
not citizens” is not himself a citizen unless “domiciled” in the United
States. 2 Cong. Rec. 3279 (1874); see also J. Lollman, Note, The Signifi-
cance of Parental Domicile Under the Citizenship Clause, 101 Va. L. Rev.
455, 474–475 (2015).

33 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
father returned with him to Switzerland. President
Hayes’s Acting Secretary of State Frederick Seward re-
jected his claim. Although Speck may have been able
to claim citizenship had he been domiciled in the
United States, Seward denied his claim because “his
status, as well as his domicil, according to the well-un-
derstood principles of international and municipal law,
follows that of the father until the boy attains his ma-
jority.” Letter from Acting Sec. of State F. Seward to
H. Fish (Aug. 20, 1878), in id., at 396.
 Ludwig Hausding was denied citizenship after being
born in the United States to parents domiciled in Sax-
ony. Hausding’s parents were “Saxon subjects, tempo-
rarily in the United States.” Letter from Sec. of State
F. Frelinghuysen to J. Kasson (Jan. 15, 1885), in Pa-
pers Relating to the Foreign Relations of the United
States 395 (1886). President Cleveland’s Secretary of
State Frederick Frelinghuysen explained in 1885 that
Hausding was not constitutionally entitled to citizen-
ship. Because Hausding’s parents were not domiciled
here, he remained “subject to any foreign power.” Ibid.
Therefore, his attempt to “assert citizenship on the
ground of birth in the United States” was “untenable.”
Ibid.; see also 2 Wharton Digest 397–399.
 Richard Greisser was denied citizenship after being
born in the United States to parents domiciled in Ger-
many. He was “born in 1867 in the State of Ohio.” Let-
ter from Sec. of State T. Bayard to B. Winchester (Nov.
28, 1885), in id., at 399. His father was “domiciled in
Germany.” Ibid. According to President Cleveland’s
Secretary of State Thomas Bayard in 1885, Greisser
therefore “was on his birth ‘subject to a foreign power’
and ‘not subject to the jurisdiction of the United
States.’” Id., at 400. He was “not, therefore, under the
statute and the Constitution a citizen of the United

34 TRUMP v. BARBARA
T
HOMAS, J., dissenting
States by birth.” Ibid. The State Department thus de-
nied Greisser’s claim to citizenship. Ibid.
 Freiderich de Bourry was denied citizenship after be-
ing born in the United States to parents domiciled in
Austria. When de Bourry sought protection as an
American citizen in 1886 after returning to Europe,
Secretary Bayard denied his claim to citizenship. Alt-
hough de Bourry was “born in the city of New York,”
Secretary Bayard explained, his parents were “tempo-
rarily resident” and returned to Europe a few years
later. Letter from Sec. of State T. Bayard to J. Lee
(July 24, 1886), in id., at 401. He then remained in Eu-
rope, showing that “an Austrian domicile was chosen.”
Id., at 402. Secretary Bayard concluded that De
Bourry’s “‘passport must therefore be refused.’” Ibid.
 The child of a woman named Mary Deveraux was de-
nied citizenship after being born in the United States
in 1889. Deveraux was an Irish woman who arrived in
New York and promptly went to the hospital to give
birth the next day. She was not yet, however, lawfully
admitted to the country. Although the baby was un-
doubtedly “born on American soil,” it was not an Amer-
ican citizen because Deveraux had not yet been law-
fully admitted. See Letter from F. Reeve, Acting
Solicitor of the Treasury, to W. Windom, Secretary of
the Treasury (Mar. 4, 1890), in 11 Documents of the
Assembly of the State of New York, pp. 47–48 (1890).
President Harrison’s Administration denied the baby
citizenship: “I am, therefore, of the opinion that the
child in controversy born during the temporary re-
moval of the mother from the importing vessel to a ly-
ing-in hospital for her own comfort, pending further ex-
amination as to whether she belongs to the prohibited
class of immigrants, did not become, by reason of its
birth, under such circumstances, an American citizen.”

35 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
Id., at 48; see A. Swearer, Subject to the [Complete] Ju-
risdiction Thereof, 24 Tex. Rev. L. & Pol. 135, 171
(2020).
These children were not born to diplomats. They were not
part of invading armies or Indian tribes. They were simply
foreigners, born on American soil but not domiciled here.
And, they were all denied citizenship under the Citizenship
Clause—by those in a better position to know its original
meaning than we are today. See also 2 Wharton Digest
393–402; P. Webster, Law of Citizenship in the United
States: Treated Historically 109–129 (1891).
6
Even the most expansive executive interpretation of the
Citizenship Clause ultimately denied citizenship to a child
born here but domiciled abroad. When Francois Heinrich,
born of parents who ultimately returned to their native
Austria, claimed to be an American citizen, President
Grant’s Executive Branch did say that he was “‘originally
clothed with American nationality.’” Ante, at 13 (majority
opinion). But, it then promptly denied Heinrich’s claim to
American citizenship. Heinrich was instead—despite being
born in the United States—a citizen of Austria, where he
was domiciled: “Francois A. Heinrich should be held by the
United States to be an Austrian subject, and treated as
such; . . . he is not an American citizen.” Letter from Sec.
of State H. Fish to Baron Lederer (Dec. 24, 1872), in 2
Wharton Digest 395–396.
b
Congress understood the Citizenship Clause to exclude
the children of temporary visitors. Just two years after the
——————
6
Sometimes, children born to lawful foreigners could “elect one alle-
giance and repudiate the other” upon “reaching full age” by becoming
domiciled in the United States. F. Wharton, Conflict of Laws 35 (2d ed.
1880) (Wharton Treatise 1880). But, they were not guaranteed citizen-
ship by birth alone, and they were not guaranteed citizenship without
domicile.

36 TRUMP v. BARBARA
T
HOMAS, J., dissenting
Fourteenth Amendment was ratified, Congress passed the
Enforcement Act of 1870. The Act implemented the Citi-
zenship Clause with the same language that the Civil
Rights Act had used, limiting the right to citizenship to per-
sons born here and “not subject to any foreign power.” En-
forcement Act of 1870, §18, 16 Stat. 144 (reenacting Act of
Apr. 9, 1866, 14 Stat. 27). The 1870 Act thus incorporated
language that expressly excluded the children of temporary
foreign visitors, who were subject to the power of the foreign
countries in which they were domiciled. See Part I–B–2,
supra. If the Citizenship Clause included the children of
temporary visitors—who clearly fall outside the reach of the
Enforcement Act—then the Reconstruction Congress would
have violated its own Citizenship Clause in an Act designed
to enforce it. See Brief for Professor Richard Epstein as
Amicus Curiae 8. The parties point to no one who suggested
that the 1870 Act was unconstitutional.
c
This Court long agreed that the Citizenship Clause did
not apply to persons born here to children of temporary vis-
itors. Just five years after the Citizenship Clause was rat-
ified, this Court explained that the phrase “subject to the
jurisdiction” excluded persons not domiciled here: “The
phrase ‘subject to its jurisdiction,’ ” the Court explained,
“was intended to exclude from its operation children of min-
isters, consuls, and citizens or subjects of foreign states
born within the United States.” Slaughter-House Cases, 16
Wall., at 73.
Then, in Elk, the Court again interpreted the Clause to
require complete jurisdiction, not just bare territorial au-
thority. The Court held that to satisfy the Citizenship
Clause, a person must not only be “born within the territo-
rial limits of the United States,” but must be “completely
subject” to the United States’ “political jurisdiction” at
birth. 112 U. S., at 102. The Citizenship Clause’s “evident

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HOMAS, J., dissenting
meaning,” this Court said, “is, not merely subject in some
respect or degree to the jurisdiction of the United States,
but completely subject to [its] political jurisdiction, and ow-
ing [it] direct and immediate allegiance.” Ibid. The Citi-
zenship Clause thus granted citizenship at birth only to
persons who “ow[ed] no allegiance to any alien power.” Id.,
at 101. Of course, the children of temporary visitors were
not completely subject to the United States’ political juris-
diction, did not owe the United States direct and immediate
allegiance, and did owe allegiance to an alien power. See
Part I–B–2, supra.
Justice Harlan dissented in Elk, but he agreed that the
Citizenship Clause referred to the same “complete jurisdic-
tion.” Id., at 117. He dissented only because he thought
that someone born in the territorial United States could be-
come a citizen even if he became subject to its complete ju-
risdiction later in life. On Justice Harlan’s view, which was
not uncommon at the time, the Citizenship Clause did not
require that the person be born while subject to the com-
plete jurisdiction of the United States. Id., at 116–121. In-
stead, a person could be born in the United States while not
subject to its jurisdiction—as John Elk was because he was
a member of an Indian tribe at birth—but become subject
to its jurisdiction later—as Elk did by “abandoning his
tribe.” Id., at 122. On Justice Harlan’s view, following the
law of domicile, persons became subject to the jurisdiction
of the United States “by becoming bona fide residents of
States” and “subject to taxation” there. Id., at 120–122; see
also id., at 122 (explaining that one becomes “subject to the
complete jurisdiction of the United States” “by residence in
one of the States”). Every Justice in Elk thus agreed that
the Citizenship Clause did not refer to bare territorial au-
thority.
The most celebrated Fourteenth Amendment opinion is
Justice Harlan’s dissent in Plessy v. Ferguson. In that dis-
sent, Justice Harlan disagreed with the Plessy Court’s

38 TRUMP v. BARBARA
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HOMAS, J., dissenting
conclusion that the Constitution tolerated state-imposed
segregation. Justice Harlan took the position, to be vindi-
cated decades later, that “[o]ur Constitution is color-blind,
and neither knows nor tolerates classes among citizens.”
163 U. S., at 559. He also took a view on whom the Citizen-
ship Clause applied and did not apply to. According to Jus-
tice Harlan, the Citizenship Clause did not apply to persons
born here who resided abroad. Instead, it “gave citizenship
to all born or naturalized in the United States and residing
here.” Id., at 563 (emphasis added).
d
State officials likewise agreed that the Citizenship
Clause excluded persons not domiciled here. Although the
Citizenship Clause guaranteed both national and state cit-
izenship, States excluded from citizenship “children of tran-
sient aliens.” Political Code of California §51(1) (1872); ac-
cord, e.g., Rev. Codes of N. D. §11(1), p. 64 (1895) (“The
citizens of the state are: All persons born in this state and
residing within it, except the children of transient aliens”);
The Complete Codes and Statutes of the State of Montana
§71(1), p. 5 (W. Sanders ed. 1895) (“The citizens of the State
are: All persons born in this State and residing within it,
except the children of transient aliens”). Nobody seemed to
suggest that these state laws violated the Fourteenth
Amendment.
Likewise, state judicial precedent held that the Citizen-
ship Clause included children born of foreign parents only
“when the parents are domiciled here.” Benny v. O’Brien,
58 N. J. L. 36, 40 (1895). To qualify for citizenship, “[t]wo
facts must concur[:] the person must be born here, and he
must be subject to the jurisdiction of the United States ac-
cording to the fourteenth amendment, which means, ac-
cording to the Civil Rights act, that the person born here is
not subject to any foreign power.” Id., at 39. The

39 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
Citizenship Clause thus “excepted” those “born in this coun-
try of foreign parents who are temporarily traveling here.”
Ibid.
2
Scholars agreed, as well, that the Citizenship Clause re-
quired domicile. As early as 1875, Yale Law School Profes-
sor William Robinson wrote that a “native-born citizen” was
“one who was born within the jurisdiction and allegiance of
the United States.” Notes on Elementary Law, at 70. And,
to be born within the jurisdiction and allegiance of the
United States, a person “born within the territory of the
United States, of alien parents,” had to show that those par-
ents were “permanently domiciled within the United
States.” Ibid.
A long list of eminent 19th-century legal scholars—in-
cluding Thomas Cooley, Francis Wharton, Henry Campbell
Black, and Justice Samuel Miller—agreed. Cooley wrote
that “a citizen by birth must not only be born within the
United States, but he must also be subject to the jurisdic-
tion thereof; and by this is meant that full and complete ju-
risdiction to which citizens generally are subject, and not
any qualified and partial jurisdiction, such as may consist
with allegiance to some other government.” General Prin-
ciples of Constitutional Law 243. Francis Wharton ex-
plained that children “born in the United States” of “par-
ents not being here domiciled, are not citizens.” Wharton
Treatise 1880, at 41; see also 2 Wharton Digest 393–394
(Citizenship Clause “exclude[d] children born in the United
States to foreigners here on transient residence, such chil-
dren not being by the law of nations ‘subject to the jurisdic-
tion of the United States’”). Henry Campbell Black—of
Black’s Law Dictionary—wrote: “[I]f a stranger or traveler
passing through the country, or temporarily residing here,
. . . has a child born here, who goes out of the country with
his father, such child is not a citizen of the United States,

40 TRUMP v. BARBARA
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HOMAS, J., dissenting
because he was not subject to its jurisdiction.” Handbook
of American Constitutional Law 458 (1895). By contrast,
“the children, born within the United States, of perma-
nently resident aliens, . . . are citizens.” Id., at 458–459.
And, Justice Samuel Miller confirmed in his lectures on
constitutional law that if a “traveller . . . temporarily resid-
ing in this country . . . has a child born here which goes out
of the country with its father, such child is not a citizen of
the United States, because it was not subject to its jurisdic-
tion.” Lectures on the Constitution of the United States 279
(1891).
Scholar after scholar confirmed that domicile was re-
quired for citizenship. “The words ‘subject to the jurisdic-
tion thereof,’ exclude[d] the children of foreigners transi-
ently within the United States.” A. Morse, Treatise on
Citizenship 248 (1881). The Citizenship Clause excluded
the “children of foreign subjects, born while the latter tran-
siently sojourn here.” M. Lesser, Citizenship and Fran-
chise, 4 Colum. L. Times 113, 146 (1891). “[T]he children of
foreigners, in transient residence, are not citizens, their fa-
thers being subject to the jurisdiction less completely than
Indians.” Hall, The Foreign Powers and Jurisdiction of the
British Crown, at 63; see also W. Hall, International Law
236–237 (4th ed. 1895) (“In the United States it would seem
that the children of foreigners in transient residence are not
citizens”). “[T]he requirement of personal subjection to the
‘jurisdiction thereof’ ” excludes “children of persons passing
through or temporarily residing in this country.” B. Win-
chester, Citizenship in Its International Relation, 31 Am. L.
Rev. 504 (1897).
As immigration laws became more restrictive, some
adopted the view that children must be born to citizens to
obtain citizenship by birth. In contesting that view, its de-
tractors spoke in terms of domicile. Prominent jurist Henry
C. Ide, for example, published an article arguing that
whether “the very fact of birth in our country render[s] one

41 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
‘subject to the jurisdiction thereof’ ” depends on “the ques-
tion of domicile.” Citizenship By Birth—Another View, 30
Am. L. Rev. 241, 248 (1896). The “‘jurisdiction’ referred to
in the amendment means political national jurisdiction and
not merely the jurisdiction of our laws.” Id., at 247. “One
born of parents temporarily in our country” is not constitu-
tionally guaranteed citizenship because he “is not born with
the stamp of domicile,” so the “elements of national juris-
diction are wanting.” Id., at 248. By contrast, Ide con-
tended, persons “domiciled but not naturalized” are
“de facto though not de jure citizens of the country of their
domicile,” so “[t]heir children should be deemed de jure as
well as de facto citizens.” Id., at 249 (internal quotation
marks omitted).
7
3
In United States v. Wong Kim Ark, 169 U. S. 649, this
Court interpreted the Citizenship Clause to apply to a per-
son born and domiciled here.
The case, and the arguments made in it, arose out of the
unique circumstances of Chinese immigration in the late-
19th century. Hundreds of thousands of Chinese immi-
grated to the United States during this time. They were
met with considerable hostility. By statute, Chinese set-
tlers could not be naturalized. See In re Ah Yup, 1 F. Cas.
——————
7
Throughout this time, Indians in tribes born on American soil contin-
ued to be viewed as noncitizens. Their citizenship evolved not through
any changes to the interpretation of the Citizenship Clause, but through
changes in statutory law. Congress in 1887, effectively adopting Justice
Harlan’s dissent in Elk v. Wilkins, 112 U. S. 94 (1884), as a matter of
policy, granted citizenship to “every Indian born within the territorial
limits of the United States who has voluntarily taken up, within said
limits, his residence separate and apart from any tribe of Indians
therein, and has adopted the habits of civilized life.” Act of Feb. 8, 1887,
§6, 24 Stat. 390. And, Congress declared Indians in tribes citizens in the
1924 Indian Citizenship Act. See Act of June 2, 1924, ch. 233, 43 Stat.
253.

42 TRUMP v. BARBARA
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HOMAS, J., dissenting
223, 223–225 (CC Cal. 1878); Fong Yue Ting v. United
States, 149 U. S. 698, 724 (1893). Congress then banned
Chinese immigration in the Chinese Exclusion Act of 1882.
See Act of May 6, 1882, ch. 126, 22 Stat. 58–61. Meanwhile,
if a Chinese person renounced his allegiance to China, the
Chinese Government could behead him upon his return,
sell his family as slaves, and banish his relatives. See Wong
Kim Ark, 169 U. S., at 725, n. 1; Justice John Marshall Har-
lan: Lectures on Constitutional Law, 1897–98, Lecture No.
27 (May 7, 1898), in 81 Geo. Wash. L. Rev. Arguendo 12,
345 (B. Frye, J. Blackman, & M. McCloskey eds. 2013).
Given the era’s concern with dual citizenship, see Part I–
B–2–a, supra, this policy made it even more difficult for
Chinese immigrants to fully settle in the United States.
See Wong Kim Ark, 169 U. S., at 725–726 (Fuller, C. J., dis-
senting).
Unlike other settlers, then, the Chinese—even those who
lived here and wished to remain—had no path to citizen-
ship and no means of freeing themselves from the grasp of
China. The Executive Branch took the view that because
domicile no longer ensured full integration into the Ameri-
can body politic, the Citizenship Clause’s phrase “subject to
the jurisdiction” must require more than domicile. That
view would entail that a child born to Chinese parents dom-
iciled in this country was not a citizen. Instead, the Execu-
tive Branch sought to replace the requirement of domicile,
which would make any child of domiciled Chinese immi-
grants a citizen, with the requirement that a person’s par-
ents already be citizens. See Brief for United States in
United States v. Wong Kim Ark, O. T. 1895, No. 904, pp. 23–
34; see also, e.g., In re Look Tin Sing, 21 F. 905, 906 (Cal.
1884). Acting on this view, the Government in 1895 denied
citizenship to a man domiciled in the United States from
birth.
The stipulated facts were these. See Wong Kim Ark, 169
U. S., at 652–653. Wong Kim Ark was born in San

43 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
Francisco in 1873, and his legal home was California. His
parents were not temporary visitors. They were not illegal
aliens. See Tr. of Record in United States v. Wong Kim Ark,
O. T. 1897, No. 132, p. 6. Instead, Wong’s parents “had
done everything within their power to express their desire
and intent to become Americans.” Post, at 27 (A
LITO, J.,
dissenting). They came to settle in America. After Wong
traveled to China in 1890, he returned and was admitted to
the United States as a citizen. But, after his second trip to
China in 1894, the American customs collector denied him
permission to re-enter. The Government claimed, for the
first time, that Wong was not a citizen.
This Court’s decision in Wong Kim Ark concerned only
persons already domiciled in the United States. As stated
in the Government’s brief, the “question presented by this
appeal” was: “Is a person born within the United States of
alien parents domiciled therein a citizen thereof by the fact
of his birth?” Brief for Appellant in Wong Kim Ark, O. T.
1895, No. 904, p. 2 (emphasis deleted). The Government
agreed that Wong was born and domiciled in the United
States. Id., at 23; see also Brief for United States in Wong
Kim Ark, O. T. 1896, No. 449, pp. 2–3. In fact, the thrust of
the Government’s opening brief was that birth and domicile
were insufficient. The Government lamented “the mistakes
made and the misunderstanding arising from failing to dis-
tinguish between nationality and domicile.” Brief for Ap-
pellant in Wong Kim Ark, O. T. 1895, No. 904, at 13; see
also Reply Brief in Wong Kim Ark, O. T. 1896, No. 449, at
9–10. It disapproved of the decisions of “some of our Attor-
neys-General and Secretaries of State” for their “error of
failing to distinguish between nationality and domicile.”
Id., at 10. It acknowledged that state citizenship was based
on domicile, but argued that a different rule should govern
national citizenship to “preserve the distinction between
State and national sovereignty.” Id., at 17. “The Constitu-
tion does not countenance,” the Government argued,

44 TRUMP v. BARBARA
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HOMAS, J., dissenting
making “domicile an element of nationality.” Id., at 29. The
Court was not persuaded and ruled that Wong, born in the
United States to parents domiciled here, was a citizen.
The Court found it so important that Wong and his par-
ents were domiciled in the United States at the time of his
birth that it gratuitously insisted upon that fact throughout
its opinion. The Court’s introductory paragraph stated
seven different ways that Wong was domiciled in the
United States: He was born to parents who were “at the
time of his birth domiciled residents of the United States.”
169 U. S., at 652 (emphasis added). His parents were “en-
joying a permanent domicile and residence therein at San
Francisco.” Ibid. (emphasis added). His parents “continued
to reside and remain in the United States.” Ibid. (emphasis
added). He “ever since his birth, has had but one residence,
to wit, in California, within the United States.” Ibid. (em-
phasis added). He “ha[d] there resided.” Ibid. (emphasis
added). He “never lost or changed that residence.” Ibid.
(emphasis added). And, he never “gained or acquired an-
other residence.” Ibid. (emphasis added).
Two paragraphs later, the Court confirmed that its deci-
sion was limited to persons born and domiciled in the
United States. “The question presented by the record is
whether a child born in the United States, of parents of Chi-
nese descent, who, at the time of his birth, are subjects of
the Emperor of China, but have a permanent domicil and
residence in the United States, . . . becomes at the time of
his birth a citizen of the United States.” Id., at 653 (empha-
sis added). Then, if that were not enough, the Court reiter-
ated the same limits to its opinion in its final paragraph:
This case “present[ed] for determination the single question,
stated at the beginning of this opinion, namely, whether a
child born in the United States, of parents of Chinese de-
scent, who, at the time of his birth, are subjects of the Em-
peror of China, but have a permanent domicil and residence

45 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
in the United States . . . becomes at the time of his birth a
citizen of the United States.” Id., at 705 (emphasis added).
The opinion itself was filled with meandering dicta. The
Court’s interpretation of the Citizenship Clause evolved
over the course of the opinion, before landing on an inter-
pretation that limited citizenship at birth to persons domi-
ciled here. At first, the opinion stated that the rule of Amer-
ican citizenship was the feudal principle of birth on the soil
with only two exceptions: (1) “the child of an ambassador or
other diplomatic agent of a foreign State” and (2) the child
of “an alien enemy in hostile occupation.” Id., at 658. Then,
after considering more evidence and arguments, the opin-
ion reformulated the rule to include a third exception: (1)
“children of members of the Indian tribes,” (2) “children
born of alien enemies in hostile occupation,” and (3) “chil-
dren of diplomatic representatives of a foreign State.” Id.,
at 682. Then, after discussing more “considerations and au-
thorities,” the opinion reformulated the rule with at least
five exceptions and a residence requirement: “[A]ll children
here born of resident aliens,” with “the exceptions or quali-
fications” of (1) “children of foreign sovereigns,” (2) children
of foreign “ministers,” (3) children “born on foreign public
ships,” (4) children “of enemies within and during a hostile
occupation of part of our territory,” and (5) “children of
members of the Indian tribes owing direct allegiance to
their several tribes.” Id., at 693 (emphasis added). Then,
the Court concluded by reiterating an explicit domicile re-
quirement: Outside of these five categories, the Citizenship
Clause covers “all other persons, of whatever race or color,
domiciled within the United States.” Ibid. (emphasis
added). So, although these various statements are both
dicta and irreconcilable—as is much of the opinion’s reason-
ing—the Court’s most complete rule statement was limited
to persons, like Wong, born and domiciled in the United
States.

46 TRUMP v. BARBARA
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HOMAS, J., dissenting
Chief Justice Fuller’s dissent, joined by Justice Harlan,
did not accept the Government’s primary theory that, to
qualify for birthright citizenship, a child born in this coun-
try must also be born to citizen parents. Such a position,
after all, was in tension with Justice Harlan’s twice-stated
view that the Citizenship Clause turned on “complete juris-
diction,” Elk, 112 U. S., at 116–117 (dissenting opinion), or
“resid[ence],” Plessy, 163 U. S., at 563 (dissenting opin-
ion)—two terms that corresponded to domicile. Chief Jus-
tice Fuller’s dissent instead took the position that the Citi-
zenship Clause “recognize[d] an essential difference
between birth during temporary, and birth during perma-
nent, residence.” Wong Kim Ark, 169 U. S., at 729; accord,
Comment, 7 Yale L. J. 365, 367 (1898). On his account, the
Citizenship Clause excluded children “born of aliens whose
residence was merely temporary.” 169 U. S., at 729.
Chief Justice Fuller nonetheless dissented because he re-
jected the premise that Wong’s parents were domiciled here
at the time of his birth. He explained that because Chinese
law purported to bind Wong’s family even after they had
settled here, the family “cannot . . . acquire a permanent
home here, no matter what the length of their stay may be.”
Id., at 731; see also id., at 725, and n. 1; see also Justice
John Marshall Harlan: Lectures on Constitutional Law, in
81 Geo. Wash. L. Rev. Arguendo, at 345. Thus, Chief Jus-
tice Fuller and Justice Harlan dissented because, in their
view, Wong and his parents were not actually domiciled in
the United States at the time of his birth.
4
Wong Kim Ark left in place the same rule that existed
before: A child of a domiciliary was a citizen, but a child of
a temporary visitor was not.
“The effect of [Wong Kim Ark],” a legal scholar explained
shortly after it was published, “is to make citizens of the
United States by virtue of the Fourteenth Amendment all

47 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
persons born in the United States of alien parents perma-
nently domiciled and residing here.” W. Guthrie, Lectures
on the Fourteenth Article of Amendment to the Constitu-
tion of the United States 57 (1898) (emphasis added). As a
Fourteenth Amendment treatise published in 1901 ex-
plained, it remained the case that “mere birth within Amer-
ican territory does not always make the child an American
citizen.” H. Brannon, Rights and Privileges Guaranteed by
the Fourteenth Amendment to the Constitution of the
United States 25 (Brannon). The Citizenship Clause ex-
cluded “children of aliens born here while their parents are
traveling or only temporarily resident.” Ibid. Wong Kim
Ark was limited to “alien parents, not temporarily resident
here, but permanently domiciled.” Brannon 29.
On this understanding of Wong Kim Ark, temporary vis-
itors’ children were still excluded from citizenship. “In the
United States,” William Edward Hall wrote six years after
Wong Kim Ark, “it would seem that the children of foreign-
ers in transient residence are not citizens.” International
Law 227 (5th ed. 1904). A 1901 international-law treatise
explained that “children born in the United States to for-
eigners here on transient residence are not citizens, be-
cause by the law of nations they were not at the time of their
birth ‘subject to the jurisdiction’” of the United States. H.
Taylor, International Public Law 220. When a “father has
domiciled himself in the Union,” John Westlake wrote in
1904, his children “are citizens.” International Law 219–
220. But, when he is “in the Union for a transient purpose,”
his children “born within it have his nationality.” Ibid.
This understanding was widespread after Wong Kim Ark:
“A person born in this country of alien parents” was a “citi-
zen” only if those parents were “domiciled.” 1 Bouvier’s
Law Dictionary 492 (1914). A child born in the United
States is a “citizen” when “domiciled,” but not when his par-
ents left after being “temporarily resident.” 1 F. Wharton,
Conflict of Laws 44–45 (1905). A child born on American

48 TRUMP v. BARBARA
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HOMAS, J., dissenting
soil to “a stranger or traveler passing through the country”
was not a citizen, but a child “born within the United
States, of permanently resident aliens” was a citizen.
Black, Handbook of American Constitutional Law, at 634
(3d ed. 1910). The rule remained, in other words, that “chil-
dren . . . of foreigners in transient residence” were “ex-
cluded from citizenship, even though born in the United
States.” 1 H. Bellott, Leading Cases on International Law
183 (4th ed. 1922).
Government officials generally agreed. In 1910, a De-
partment of Justice report explained that “it has never been
held, and it is very doubtful whether it will ever be held,
that the mere act of birth of a child on American soil, to
parents who are accidentally or temporarily in the United
States, operates to invest such child with all the rights of
American citizenship.” Spanish Treaty Claims Comm’n, Fi-
nal Report of William Wallace Brown 124. The Citizenship
Clause did “not mean that jurisdiction to which the bodily
form of the child is subject from the moment of its birth . . .
but that larger jurisdiction, which, though difficult to de-
fine, is well known and understood, the difference between
the jurisdiction which is exercised over a visitor and that
over one domiciled, which difference may be seen at a
glance.” Id., at 125.
Even this Court described Wong Kim Ark in limited
terms. It read Wong Kim Ark to apply to aliens with a “per-
manent domicil and residence in the United States.” Chin
Bak Kan v. United States, 186 U. S. 193, 200 (1902) (inter-
nal quotation marks omitted). Wong Kim Ark, in its telling,
covered children born to parents “permanently domiciled in
the United States.” Kwock Jan Fat v. White, 253 U. S. 454,
457 (1920).
5
Throughout this period, Congress left in place the same
statutory language that it originally enacted in 1866 and

49 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
then re-enacted in 1870, so American citizenship was lim-
ited to persons “not subject to any foreign power.” See En-
forcement Act of 1870, §18, 16 Stat. 144 (reenacting Act of
Apr. 9, 1866, 14 Stat. 27); see also Rev. Stat. §1992 (1875)
(“All persons born in the United States and not subject to
any foreign power, excluding Indians not taxed, are de-
clared to be citizens of the United States”); 8 U. S. C. §1
(1934 ed.) (“All persons born in the United States and not
subject to any foreign power are declared to be citizens of
the United States”).
The Nationality Act of 1940 replaced that language with
the same language (in relevant part) as the Citizenship
Clause itself: a “person born in the United States, and sub-
ject to the jurisdiction thereof,” is a citizen. 54 Stat. 1138.
Congress reenacted that provision verbatim in the 1952 Im-
migration and Nationality Act (INA). 66 Stat. 235–236. It
remains the governing statute today. See 8 U. S. C. §1401.
F
1
In the 20th century, executive practice repurposed the
Citizenship Clause to treat the children of temporary visi-
tors and illegal aliens as citizens.
An assistant solicitor named Richard Flournoy promi-
nently argued that the Citizenship Clause does include the
children of temporary visitors. See Dual Nationality and
Election, 30 Yale L. J. 545, 546 (1921). He disagreed with
“a number of writers” who held that “in order that a person
born in the United States of alien parents may have Amer-
ican citizenship, his parents must have been domiciled in
this country at the time of his birth.” Id., at 552. Although
he acknowledged that “Wong Kim Ark did not directly de-
cide the precise point,” he said that the Citizenship Clause
should be read to incorporate a rule that “originated with
the feudal system, under which all persons, with certain
limited exceptions, born within the fief of an over lord were

50 TRUMP v. BARBARA
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HOMAS, J., dissenting
held to owe fealty to him and allegiance to the sovereign.”
Id., at 546, 552. Flournoy acknowledged that some conse-
quences of his theory were “[a]bsurd.” Id., at 553.
President Franklin D. Roosevelt’s administration
adopted the view that the Citizenship Clause applied to the
children of temporary visitors. See Brief for Citizenship
Law Scholars as Amici Curiae 10–18; 1 House Committee
on Immigration and Naturalization, 76th Cong., 1st Sess.,
7 (Comm. Print 1939). In 1995, some 127 years after the
Citizenship Clause was enacted, President Clinton’s Office
of Legal Counsel endorsed the same view. 19 Op. OLC. 340.
It explained that the right to American citizenship for the
children of illegal aliens and temporary visitors “is funda-
mental to our liberty as we understand it.” Id., at 349.
Many in Congress disagreed with the Executive Branch’s
view. As late as the 1990s, Senator Harry Reid sponsored
bipartisan legislation to clarify that the child of an illegal
alien or temporary visitor would “not be a citizen of the
United States or of any State solely by reason of physical
presence within the United States at the moment of birth.”
S. 1351, 103d Cong. 1st Sess., §1001 (1993). “No sane coun-
try,” Senator Reid argued, would offer a “reward for being
an illegal immigrant.” R. Igielnik, Most Americans Favor
Birthright Citizenship. That Wasn’t Always True, N. Y.
Times, Mar. 31, 2026. Others supported similar legislation.
Ibid.
The question was not prominent in judicial opinions in
the 20th century. One of the first substantial discussions
arose 105 years after Wong Kim Ark, when Judge Posner
treated the matter as unsettled. “A constitutional amend-
ment may be required to change the rule whereby birth in
this country automatically confers U. S. citizenship,” he
wrote, “but I doubt it.” Oforji v. Ashcroft, 354 F. 3d 609, 621
(CA7 2003) (concurring opinion). “The purpose of the rule
was to grant citizenship to the recently freed slaves,” and it

51 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
“would not be flouting the Constitution” to “put an end to
the nonsense.” Ibid.
2
Some took advantage of the Executive Branch’s recent
policy of granting citizenship to anyone born on American
soil. The policy encouraged “birth tourism”—the practice of
traveling here with temporary authorization solely to give
birth and obtain citizenship for one’s children, then return-
ing to raise them in another country.
Today, “birth tourism companies” reportedly collect large
fees from wealthy foreigners to facilitate their trips to give
birth in the United States. Senate Committee on Homeland
Security and Governmental Affairs, Report on Birth Tour-
ism in the United States: Minority Staff Report 25–33
(2022). Large numbers of children are born in the United
States each year to parents who are temporarily present
here in order to obtain citizenship for their children. J. Pak,
Why Chinese Parents Come To America to Give Birth, Mar-
ketplace (Mar. 7, 2019), https://www.market-
place.org/story/2019/03/06/why-chinese-parents-come-
america-give-birth; see also Brief for Tennessee et al. as
Amici Curiae 28–29.
G
1
Upon taking office, President Trump issued an Executive
Order that expressed the Executive Branch’s interpretation
of the Citizenship Clause. See Exec. Order No. 14160, 90
Fed. Reg. 8449 (2025).
The Citizenship Order adopts the view that the Four-
teenth Amendment does not guarantee citizenship at birth
to the children of temporary visitors and illegal aliens. Sec-
tion 1 of the Order interprets the scope of the Citizenship
Clause. It states that someone born in the United States is
not guaranteed citizenship if that person is born here to

52 TRUMP v. BARBARA
T
HOMAS, J., dissenting
lawful temporary foreign visitors or to illegal aliens. By
contrast, a person is guaranteed citizenship if he is born
here to lawful permanent residents or citizens. Section 2 of
the Order then directs the Executive Branch to implement
this interpretation by not issuing documents recognizing
the citizenship of persons in the two excluded categories
and by not accepting documents issued by state, local, or
other governments purporting to recognize the citizenship
of such persons. Those directives are prospective. They
“apply only to persons who are born within the United
States after 30 days from the date of this order.” Ibid. Sec-
tion 3 of the Order directs executive officials to implement
the Order with appropriate regulations, policies, and guid-
ance. Id., at 8449–8450.
The President’s initiative generated a groundswell of new
scholarship into the original meaning of the Citizenship
Clause. A wide range of originalist scholars have concluded
that the 20th century executive practice was mistaken and
that the Order has substantial lawful applications. See
generally, e.g., Lash, 101 Notre Dame L. Rev. 101; R. Ep-
stein, The Myth of Birthright Citizenship (2026); I.
Wurman, Jurisdiction and Citizenship, 49 Harv. J. L. Pub.
Pol’y 315 (2026); Swearer, 2 Tex. A & M J. L. & Civ. Gov.
73; R. Barnett, Trump Is Right on Birthright Citizenship,
Wall Street Journal, Mar. 31, 2026; P. Hamburger, Alle-
giance, Birthright, and Citizenship, Law and Liberty (Apr.
9, 2026), https://lawliberty.org/allegiance-birthright-and-
citzenship (archived at perma.cc/S9JB-ZNEP).
2
Before the Order went into effect or executive agencies
implemented it, several District Courts universally en-
joined its implementation.
8
This Court partially stayed
——————
8
See CASA, Inc. v. Trump, 763 F. Supp. 3d 723, 747 (Md. 2025); Wash-
ington v. Trump, 765 F. Supp. 3d 1142, 1154 (WD Wash. 2025); Doe v.

53 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
those injunctions in Trump v. CASA, Inc., 606 U. S. 831
(2025), because they exceeded the District Courts’ remedial
authority. Id., at 861. Several plaintiffs immediately filed
new actions, and several District Courts again enjoined the
Executive Branch from implementing the Order.
9
This case arises from one of those actions. Three plain-
tiffs sued on behalf of a putative class. The plaintiffs, who
proceed under pseudonyms, are each illegal aliens or lawful
temporary visitors. The first plaintiff, a Honduran citizen,
was expecting a baby due in October 2025. The other two
plaintiffs, one Taiwanese citizen and one Brazilian citizen,
did not allege that they were expecting a baby. None al-
leged that any of their children will be domiciled in the
United States. As a right of action, plaintiffs invoked the
Citizenship Clause itself, the INA, and the Administrative
Procedure Act. They sued on behalf of a putative class of
all children who would be ineligible for citizenship under
the President’s Order, as well as those children’s parents.
And, they sought to have the Order declared “unconstitu-
tional and unlawful in its entirety.” Complaint in No. 25–
cv–244 (NH), ECF Doc. 1, p. 16.
The District Court ruled for the plaintiffs. It interpreted
the Citizenship Clause to guarantee citizenship to the chil-
dren of all lawful temporary visitors and illegal aliens. As
to relief, the District Court certified a provisional universal
class under Federal Rule of Civil Procedure 23(b)(2), which
states that class actions may be maintained if the defend-
ant “has acted or refused to act on grounds that apply gen-
erally to the class, so that final injunctive relief . . . is ap-
propriate respecting the class as a whole.” The certified
class consisted of “[a]ll current and future persons . . . born
on or after February 20, 2025” who fall within the two
——————
Trump, 766 F. Supp. 3d 266, 290 (Mass. 2025); New Hampshire Indone-
sian Community Support v. Trump, 765 F. Supp. 3d 102, 112 (NH 2025).
9
See, e.g., 790 F. Supp. 3d 80, 101, 105–106 (NH 2025); CASA, Inc. v.
Trump, 793 F. Supp. 3d 703, 710 (Md. 2025).

54 TRUMP v. BARBARA
T
HOMAS, J., dissenting
categories covered by the President’s order. 790 F. Supp.
3d 80, 105 (NH 2025). The District Court entered a class-
wide preliminary injunction prohibiting enforcement of the
Citizenship Order against anyone in the class—meaning
anyone at all.
3
The Court today affirms the District Court’s universal-
class injunction. It holds that the Fourteenth Amendment
guarantees citizenship to all children born here to lawful
temporary visitors or illegal aliens. On the Court’s telling,
the law of citizenship in the United States was fixed to an
English rule that everyone born on the soil was perma-
nently bound to serve the sovereign. Ante, at 2–3. This
principle of permanent feudal allegiance, according to the
Court, was repurposed into a rule of citizenship and
adopted by “all of the states.” Ante, at 4 (internal quotation
marks omitted). The rule’s universal acceptance was em-
bodied by an 1844 state equity decision called Lynch v.
Clarke, 1 Sand. Ch. 583. See ante, at 6. The rule extended
citizenship to all persons born within United States terri-
tory, except three categories: children of foreign represent-
atives, children over whom the Government lacked “actual
power,” and children of Indians in tribes. Ante, at 3, 4–6.
Those three exceptions were then adopted in the Civil
Rights Act and the Enforcement Act by the phrase “not sub-
ject to any foreign power,” and in the Citizenship Clause by
the phrase “subject to the jurisdiction thereof.” Ante, at 8–
10. This Court’s Wong Kim Ark opinion three decades later,
the Court says, confirmed the same rule. Ante, at 13–16.
II
Before proceeding to the merits, I briefly note three
threshold impediments to the Court’s decision today that
the Court leaves unaddressed.

55 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
First, the Court has an “independent obligation,” Sum-
mers v. Earth Island Institute, 555 U. S. 488, 499 (2009), to
ensure that every single recipient of “‘class action’” relief
has standing, TransUnion LLC v. Ramirez, 594 U. S. 413,
431 (2021). But, today it affirms an injunction on behalf of
a class that includes “all current or future persons” subject
to the Order indefinitely into the future. 790 F. Supp. 3d,
at 105. Contra, Lujan v. Defenders of Wildlife, 504 U. S.
555, 564 (1992); see CASA, 606 U. S., at 855, n. 1 (explain-
ing that class judgment “binds the whole class”).
Second, the Court cannot grant relief to any party with-
out a right of action. See Whole Woman’s Health v. Jackson,
595 U. S. 30, 52 (2021) (T
HOMAS, J., concurring in part and
dissenting in part). But, it grants relief here on the basis of
a suit brought under the Citizenship Clause, the INA, and
the APA. The Citizenship Clause and the INA’s equivalent,
by their terms, create no right of action. The APA author-
izes suits challenging “final agency action,” but the plain-
tiffs did not allege any final agency action. See 5 U. S. C.
§704; Bennett v. Spear, 520 U. S. 154, 177–178 (1997).
Third, because respondents sought to invalidate the Cit-
izenship Order in its entirety and the District Court
granted facial relief, the plaintiffs bear the burden to show
that all applications of the Order are unlawful. See post, at
2 (G
ORSUCH, J., dissenting). Under this Court’s precedent,
facial challenges require plaintiffs to establish “that ‘no set
of circumstances exists under which the [Order] would be
valid.’” Moody v. NetChoice, LLC, 603 U. S. 707, 765 (2024)
(T
HOMAS, J., concurring in judgment) (quoting United
States v. Salerno, 481 U. S. 739, 745 (1987)). To prevent
federal courts from invading the political branches’ interest
in effectuating policies “enacted by representatives of [the]
people,” Maryland v. King, 567 U. S. 1301, 1303 (2012)
(R
OBERTS, C. J., in chambers) (internal quotation marks
omitted), facial invalidation must remain rare and “hard to
win.” Moody, 603 U. S., at 723.

56 TRUMP v. BARBARA
T
HOMAS, J., dissenting
The Court’s decision to hold the Citizenship Order fa-
cially unconstitutional, in other words, makes it unlawful
for the President to enforce the Order against a single per-
son. He cannot enforce the Order against a child of an alien
enemy or a child of a foreign spy. He cannot even enforce
the Order against children who are raised in foreign coun-
tries, join foreign armies, and fight wars against the United
States. The Court, without considering any of these indi-
vidual circumstances, holds unconstitutional the applica-
tion of the Citizenship Order in all of them.
III
In my view, the Citizenship Order is not facially uncon-
stitutional. The Order is consistent with the original mean-
ing of the Citizenship Clause, at least insofar as it applies
to children born to parents, here lawfully or unlawfully,
who are not domiciled in the United States.
The Citizenship Clause was enacted for people who were
born in this country and called it home. It was enacted for
freed slaves such as Dred Scott, who had “a domicil” here
and therefore were entitled to sue as citizens. Brief for Dred
Scott 6. It was enacted for men such as Frederick Douglass,
who demanded citizenship “not as aliens nor as exiles,” but
as “Americans.” 2 Douglass 255. Its authors and support-
ers promised, over and over again, that it would exclude the
children of “persons temporarily resident” here, whom “we
would have no right to make citizens.” Cong. Globe, 39th
Cong., 1st Sess., at 572 (statement of Sen. Trumbull). In
Senator Trumbull’s words: “What do we mean by ‘subject to
the jurisdiction of the United States?’ Not owing allegiance
to anybody else. That is what it means.” Id., at 2893. And,
for decades after ratification, it was interpreted by all three
branches of Government and by a wide range of legal au-
thorities to be limited to people who were already Ameri-
cans.

57 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
The ordinary principles of constitutional interpretation—
the ones on which this Court typically relies when pre-
sented with a constitutional question such as this one—sup-
port the conclusion that the Citizenship Clause requires
domicile. That conclusion is supported by the constitu-
tional text, contemporaneous evidence, early executive
practice, early legislative practice, judicial precedent, and
all of the other indicators of original public meaning. The
Court’s alternative account does not have a similar degree
of support.
The Citizenship Order is therefore, insofar as it applies
to persons not domiciled here, consistent with the Citizen-
ship Clause. It is consistent with the Citizenship Clause in
its exclusion of the children of lawful temporary visitors,
such as birth tourists. The exclusion of the children of law-
ful temporary visitors—who are, by definition, not domi-
ciled here—was originally a matter of widespread agree-
ment. As to them, the Citizenship Order does exactly what
the Executive Branch did for most of the rest of the 19th
century, what this Court said that it could do, and what
scholars for decades confirmed that it could do. And, the
Order is at least facially consistent with the Citizenship
Clause in its exclusion of the children of illegal aliens be-
cause at least some such persons are not domiciled here,
and therefore also are not citizens.
10
——————
10
Because this case presents a facial challenge and no one disputes
that lawful temporary visitors and some illegal aliens are not domiciled
here, I would reserve for another day the question whether the children
of illegal aliens can be domiciled here.
The Government and several scholars have suggested some reasons
why, they believe, illegal aliens can never be domiciled here. An illegal
alien’s entry and presence violate federal law. See INS v. Lopez-Men-
doza, 468 U. S. 1032, 1038 (1984). He is subject to potential removal at
any time. 8 U. S. C. §§1182(a)(2)(6)(A)(i), 1229a(a)(2). And, some au-
thorities have suggested that domicile requires permission to remain.
Cf. Fong Yue Ting v. United States, 149 U. S. 698, 724 (1893); 1 Z. Swift,
A System of the Laws of Connecticut 167 (1795). Therefore, when

58 TRUMP v. BARBARA
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HOMAS, J., dissenting
A
The constitutional text supports the conclusion that the
Citizenship Clause requires domicile.
1
The Citizenship Clause guarantees citizenship to persons
who were both born in the United States and “subject to the
jurisdiction thereof.” Amdt. 14, §1. At the time that the
Citizenship Clause was adopted, the phrase “subject to the
jurisdiction” referred to the legal relationship that a person
had to the government of his domicile. See Part I–B–2–c,
supra. That legal relationship included the government’s
power over the domiciliary’s personal affairs, power to reg-
ulate his conduct everywhere, and power to impose per-
sonal taxes on him. See Story on Conflict of Laws 51–52; In
re Hood’s Estate, 21 Pa., at 115. It also included the recip-
rocal relationship of protection abroad and primary alle-
giance. Schooner Charming Betsy, 2 Cranch, at 120. A gov-
ernment lacked the powers associated with this
relationship, and thus lacked complete jurisdiction, over
temporary visitors. See The Venus, 8 Cranch, at 278. Tem-
porary visitors remained subject to the jurisdiction of their
——————
presented with variations on this question in other contexts, some courts
have concluded that an alien who wishes to remain in the United States
in violation of federal law cannot be “domiciled” here because he “lacks
the legal capacity to establish domicile.” Carlson v. Reed, 249 F. 3d 876,
881 (CA9 2001) (O’Scannlain, J., for the court); cf. Kaplan v. Tod, 267
U. S. 228, 230 (1925); Letter from F. Reeve, Acting Solicitor of the Treas-
ury, to W. Windom, Secretary of the Treasury (Mar. 4, 1890), in 11 Doc-
uments of the Assembly of the State of New York, pp. 47–48 (1890);
Wurman, 49 Harv. J. L. Pub. Pol’y, at 324, 448, and n. 503.
That said, many others understandably have suggested that long-term
resident illegal aliens satisfy the elements of domicile because they re-
side here with the intent to permanently remain. As J
USTICE GORSUCH
explains, the children of such aliens may be domiciled here because they
are “born here to parents who have long chosen to make this Nation their
permanent home.” Post, at 3 (dissenting opinion). Such questions are
best resolved in the context of as-applied challenges. See ibid.

59 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
home country. See The Pizarro, 2 Wheat., at 246. Hence, a
person was “subject to the jurisdiction” of the government
where he was domiciled. Hood, 93 Mass., at 199–200.
This interpretation accords with the contemporaneous
evidence that would have informed the public meaning of
the text. It is consistent with the Civil Rights Act’s require-
ment that citizens be “not subject to any foreign power.” 14
Stat. 27. A person born in the United States to temporary
visitors was subject to a foreign power—namely, the power
of his home country in which he retained his domicile. See
The Venus, 8 Cranch, at 277–279; The Pizarro, 2 Wheat., at
246. It is consistent with the early American law of state
and national citizenship, which turned on domicile. Brown,
8 Pet., at 115; The Venus, 8 Cranch, at 277–278; Webster
Report 2–3. It overrules Dred Scott because it restores the
rule of decision under which Scott should have won—
namely, that he was entitled to sue as a “citizen” of Missouri
because he had a “permanent domicil in the State.” Dred
Scott, 19 How., at 531 (McLean, J., dissenting); accord,
Brief for Dred Scott 6. It excludes tribal Indians because
they remained first and foremost subject to their separate
nations, which alone had complete jurisdiction over them.
See Elk, 112 U. S., at 101–102. And, it ensures that the
freedmen, who were clearly American, would not be denied
citizenship based on a racial caste system.
11
——————
11
Some have asked whether freed slaves were domiciled here given
that their ancestors were brought here against their wills. It was firmly
established that freed slaves were domiciled here. See, e.g., 4 R.
Phillimore, Commentaries Upon International Law 96–97 (1861); ac-
cord, Law of Domicil 45; Cong. Globe, 39th Cong., 1st Sess. 1160 (1866)
(statement of Rep. Shellabarger); id., at 1117 (statement of Rep. Wilson);
id., at 530 (statement of Sen. Johnson); 2 Douglass 255. Those who argue
that blacks were not domiciled in the United States would have con-
curred in the judgment in Chief Justice Taney’s opinion in Dred Scott,
the outcome of which turned on whether Dred Scott was domiciled in
Missouri. See Brief for Dred Scott 6.

60 TRUMP v. BARBARA
T
HOMAS, J., dissenting
In other words, the phrase “subject to the jurisdiction”
meant what the drafters and ratifiers said that it meant:
“ ‘complete jurisdiction,’” Cong. Globe, 39th Cong., 1st Sess.,
at 2893 (statement of Sen. Trumbull); “fully and completely
subject to the jurisdiction of the United States,” id., at 2897
(statement of Sen. Williams); “the jurisdiction of the United
States in every sense,” ibid.; and a “full and complete juris-
diction,” “coextensive in all respects with the constitutional
power of the United States, whether exercised by Congress,
by the executive, or by the judicial department; that is to
say, the same jurisdiction in extent and quality as applies
to every citizen of the United States now,” id., at 2895
(statement of Sen. Howard).
The phrase thus also had the implication that the draft-
ers and ratifiers said that it had: The children of temporary
visitors were not citizens. The Citizenship Clause, they
said, “w[ould] not, of course, include persons born in the
United States who are foreigners, aliens, who belong to the
families of embassadors or foreign ministers.” Id., at 2890
(statement of Sen. Howard). After all, “we would have no
right to make citizens” of “persons temporarily resident” in
the United States. Id., at 572 (statement of Sen. Trumbull).
2
The Court’s alternative theory is more difficult to square
with the text.
a
The Court defines the phrase “subject to the jurisdiction”
of the United States to refer to “the power of the United
States to govern those within its territory.” Ante, at 11. It
then says that at least three categories of persons born
within United States territory are not subject to its juris-
diction.
First, a person is not subject to the jurisdiction of the
United States when the Government “impliedly waive[s]”

61 Cite as: 609 U. S. ____ (2026)
THOMAS, J., dissenting
its regulatory power over him. Ante, at 11; see also ante, at
15. The Court understands this category to exempt all chil-
dren of “representatives of foreign sovereigns,” endeavoring
to capture a longstanding principle that such children were
not entitled to citizenship. Ante, at 15. Although the Court
gestures toward diplomatic immunity as a basis for this ex-
ception, diplomatic immunity extends to “only a narrow set”
of “diplomatic official[s],” not to all foreign representatives.
Brief for Sen. Ted Cruz et al. as Amici Curiae 28–29. Most
foreign officials receive a partial immunity, such as immun-
ity for their official acts. See Dept. of State, Diplomatic and
Consular Immunity (July 2019), www.state.gov/wp-con-
tent/ uploads/ 2019/ 07/ 2018- DipConImm_ v5_ Web.pdf
(archived at perma.cc/LK63-C3YL). But, partial immunity
cannot render a person not “subject to the jurisdiction” of
the United States for Fourteenth Amendment purposes.
After all, a variety of clearly American government offi-
cials—such as judges, prosecutors, and police officers—
have similar partial official immunity.
12
Furthermore, if
the political branches can deny someone citizenship by
“waiv[ing]” their regulatory power over him, then they can
deny citizenship to any child in America, even if his family
has lived here for generations and has no other home. The
better explanation for excluding the children of foreign rep-
resentatives is that they were not domiciled in the United
States.
13
——————
12
See Pierson v. Ray, 386 U. S. 547, 553 (1967); Van de Kamp v. Gold-
stein, 555 U. S. 335, 340–341 (2009); Rivas-Villegas v. Cortesluna, 595
U. S. 1, 5 (2021) (per curiam); Tenney v. Brandhove, 341 U. S. 367, 378–
379 (1951); Trump v. United States, 603 U. S. 593, 642 (2024); Brief for
Sen. Ted Cruz et al. as Amici Curiae 29.
13
Diplomats and other foreign officials were likely mentioned specifi-
cally in accounts of the scope of citizenship for another reason. They
shared much in common with domiciliaries—they were often not transi-
ent visitors, but instead stayed in the country for long indefinite periods
(and were likely to have and raise children here)—but the law treated
them uniquely and presumed that they were not domiciled regardless of

62 TRUMP v. BARBARA
T
HOMAS, J., dissenting
Second, the Court says, a person is not subject to the ju-
risdiction of the United States when the Government lacks
“actual power” over him. Ante, at 3. This category, presum-
ably, is an attempt to accommodate the consensus that cit-
izenship would not have been granted to the children of for-
eign invaders. See Brief for Respondents 1 (recognizing
exception for a person in an “occupying arm[y]”); CASA, 606
U. S., at 884 (S
OTOMAYOR, J., dissenting) (recognizing ex-
ception for a person “born of alien enemies in hostile occu-
pation” (internal quotation marks omitted)). But, while the
child of a foreign invader is of course not constitutionally
entitled to citizenship, it is not because America lacks “ac-
tual power” over him. If it were, then citizenship could be
denied to any American over whom the Government hap-
pened to lack “actual power” at birth. The more likely rea-
son why foreign invaders are not citizens is that they too
are foreign and not domiciled here.
Third, the Court says, a person is not subject to the juris-
diction of the United States when he is a “membe[r]” of an
“alien and sovereign” nation. Ante, at 5 (internal quotation
——————
the duration of their residence. See, e.g., 1 Twiss 239 (“[T]he residence
of Ambassadors and Political Envoys in a foreign country, even if such
residence continue up to the time of their death, being a residence ‘sine
animo manendi,’ should not operate to change their Domicil”); H. Hal-
leck, Elements of International Law 310 (1866) (“The national character
of an ambassador, or public minister, is not affected by his residence in
a foreign country, no matter what may be its duration, or the circum-
stances indicative of the intent of the party to render it permanent”);
Dicey & Moore 146 (“Official residence in a country is not in itself evi-
dence of an intention to settle there, because all that can (in general) be
inferred from such residence is that the official resides during the time
and for the purpose of his office. . . . The presumption is strongly (if not
conclusively) in favor of [the official] intending to retain his [original]
domicil”); Brannon 25 (“Children born here of foreign representatives . . .
under international law and common law . . . have transient residence
here, not permanent domicile”); Story on Conflict of Laws §48, at 47 (6th
ed. 1865) (“Ambassadors and other foreign ministers retain their domicil
in the country, which they represent, and to which they belong”).

63 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
marks omitted). This category reflects the Court’s attempt
to accommodate the historical record that the Citizenship
Clause excluded the children of Indians in tribes. See Part
I–D–1–b, supra. But, the Court cannot explain why tribal
Indians were not “subject to the jurisdiction” of the United
States if they happened to be born outside Indian lands
while foreign temporary visitors were. It is true that tribal
Indians belonged to “alien and sovereign” nations and that
the United States’ relations with them implicated “inter-
sovereign concerns.” Ante, at 12. But, temporarily visiting
foreigners also belong to “alien and sovereign” nations, and
the United States’ relations with them also implicate “in-
tersovereign concerns.” It is difficult to understand why
China, for example, would be less alien or less sovereign
than the Cherokee Nations. It is also difficult to under-
stand why tribal Indians would be less entitled to American
citizenship if born on non-Indian land within the United
States than children of birth tourists who immediately re-
turned to China.
b
The Court’s definition also cannot be reconciled with the
contextual evidence that would have informed the meaning
of the Citizenship Clause.
The Court does not attempt to explain how its reading of
the Citizenship Clause comports with the Civil Rights Act’s
citizenship provision. The Court does not present evidence
that the children of temporary visitors were “not subject to
any foreign power,” as the Civil Rights Act required. Tem-
porary visitors were subject to the foreign power of the gov-
ernment of their domicile. See Part I–B–2, supra; see also
Brief for Tennessee et al. as Amici Curiae 8–9. The Court
also does not present any evidence that the Citizenship
Clause had a different meaning from the Civil Rights Act.
As no party here disputes, the two provisions were agreed
to have been synonymous with respect to foreigners. See

64 TRUMP v. BARBARA
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HOMAS, J., dissenting
Cong. Globe, 39th Cong., 1st Sess., at 2890. As the plain-
tiffs’ counsel put it, “the Framers were trying to do the same
thing with the language in both.” Tr. of Oral Arg. 106–107;
accord, id., at 120.
The Court likewise cannot explain the evidence that citi-
zenship in this country was instead based on domicile. See
Part I–A–1, supra. It does not meaningfully engage with
the congressional debates, during which this provision was
extensively discussed. See Part I–D, supra. And, it has no
account of why so many legislators made so many state-
ments irreconcilable with its view. See ibid.
In fact, the Court does not even identify anyone who ex-
pressed the feudal principle in the relevant language—“not
subject to any foreign power” or “subject to the jurisdiction”
of the United States. The closest that it comes is Lynch v.
Clarke’s use of the phrase “within the jurisdiction,” see
ante, at 6, 10, language that denotes “territorial jurisdic-
tion,” Schooner Exchange v. McFaddon, 7 Cranch 116, 137
(1812). But, Congress conspicuously chose not to use that
broader territorial phrase in the Citizenship Clause. Nota-
bly, the Fourteenth Amendment elsewhere says that no
State may “deny to any person within its jurisdiction the
equal protection of the laws.” §1 (emphasis added). The
Citizenship Clause does not use that territorial phrase. See
Brief for Professor Richard A. Epstein as Amicus Curiae 6–
7 (explaining that the Equal Protection Clause refers to all
persons “within its jurisdiction” and that “the phrase ‘sub-
ject to the jurisdiction thereof ’ means something other than
‘within the jurisdiction’”). Thus, while “jurisdiction” can re-
fer to mere territorial jurisdiction, see ante, at 22–23, which
a government of course exercises over temporary visitors,
Schooner Exchange, 7 Cranch, at 137, the Citizenship
Clause did not adopt that sense of jurisdiction.

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HOMAS, J., dissenting
***
I would not interpret “subject to the jurisdiction” to refer
to the exclusion of three bespoke categories of persons
whose relationship to the sovereign was not described in
those terms. There is a simpler interpretation of the text
that was expressly endorsed by those closer in time to rati-
fication: Children born to diplomats, hostile alien occupiers,
and Indians in tribes were not citizens because they were
not subject to the complete jurisdiction of the United States.
For the same reason, the children of foreign temporary vis-
itors, who were also not subject to the complete jurisdiction
of the United States, were also not citizens.
B
Practice and precedent immediately and long following
ratification support the same conclusion. In constitutional
law, this Court often pays close attention to how govern-
ment officials interpreted and applied a constitutional pro-
vision shortly after its enactment. See Stuart v. Laird, 1
Cranch 299, 309 (1803); Trump v. Slaughter, 609 U. S. ___,
___–___ (2026) (slip op., at 9–13). Here, the Executive
Branch, Congress, and the Judiciary all largely interpreted
the Citizenship Clause to require domicile in the decades
following ratification.
1
The Executive Branch regularly denied citizenship to the
children of temporary visitors under the Citizenship
Clause.
The Executive Branch’s position, from the outset, was
that the Citizenship Clause excluded the children of aliens
who were not subject to the “complete jurisdiction” of the
United States. See 14 Op. Atty. Gen., at 300. Therefore, a
child born in the United States but “domiciled” abroad was
“on his birth ‘subject to a foreign power’ and ‘not subject to
the jurisdiction of the United States.’” Letter from Sec. of

66 TRUMP v. BARBARA
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HOMAS, J., dissenting
State T. Bayard to B. Winchester (Nov. 28, 1885), in 2
Wharton Digest 399–400. Many executive decisions under
the Citizenship Clause denied citizenship to children born
but not domiciled here. See Part I–E–1–a, supra. In rec-
orded, reasoned decisions, the Hayes, Cleveland, and Har-
rison administrations—in accordance with the opinion of
President Grant’s Attorney General—all denied citizenship
to children born in the United States but not domiciled here
(who also did not satisfy any of the exceptions to the Court’s
rule). See Part I–E–1–a, supra; 2 Wharton Digest 393–402.
On the Court’s account, each of these administrations—Re-
publican and Democratic, over the course of multiple dec-
ades, and close in time to ratification—acted in defiance of
the Constitution, seemingly without objection.
Against this settled course of practice, the Court can find
only a single executive decision from the entire 19th cen-
tury that it believes supports its interpretation. Ante, at 13.
But, in that case, the Executive Branch ultimately ruled
that the claimant—Francois Heinrich—was not a citizen.
Heinrich was born on American soil and did not fall into
any of the Court’s three exceptions, but Secretary of State
Hamilton Fish still concluded that he was “not an American
citizen” because he resided in Austria. Letter to Baron Le-
derer (Dec. 24, 1872), in 2 Wharton Digest 395–396. The
Court understands the Executive Branch to have concluded
that Heinrich was “originally clothed with American na-
tionality” but then lost that citizenship upon returning to
his domicile abroad. Ante, at 13 (internal quotation marks
omitted). Even the Court is thus forced to embrace an in-
terpretation of the Citizenship Clause that allows the polit-
ical branches to deny citizenship to persons born here to
temporary visitors. On that interpretation, the political
branches can deny citizenship to such persons once they re-
turn home.
Beyond that single case, the Court does not dispute that
the many other 19th-century executive decisions were

67 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
incompatible with its view. And, it has found no examples
of the Executive Branch actually affording the privileges of
citizenship under the Citizenship Clause to a person born
here while domiciled abroad. The Executive Branch in-
stead repeatedly took the position that the Citizenship
Clause required domicile.
14
2
Congressional practice supports the same conclusion.
“[E]arly congressional enactments provide contemporane-
ous and weighty evidence of the Constitution’s meaning.”
Utah v. Evans, 536 U. S. 452, 503 (2002) (T
HOMAS, J., con-
curring in part and dissenting in part) (internal quotation
marks and alterations omitted). Congress could have en-
acted a statute that referred to the Court’s three categories
of exceptions. Instead, in 1870, the Reconstruction Con-
gress reenacted the Civil Rights Act, which expressly ex-
cluded all persons “subject to any foreign power.” 16 Stat.
144 (reenacting Act of Apr. 9, 1866, 14 Stat. 27). Once
again, a foreigner who was not domiciled here remained
subject to a foreign power—namely, his home country. See
——————
14
One amicus brief tried to identify a decision recognizing the citizen-
ship of a person born but not domiciled here, but it hurt more than it
helped. See Brief for Charitable Irish Society of Boston et al. as Amici
Curiae 5, n. 2. That person was named Joseph Mogridge. Mogridge
made a claim against the United States in 1872 that required him to be
a British subject. See 22 British and American Mixed Comm’n, Memori-
als, Demurrers, Briefs, and Decisions, No. 345 (1873) (Mixed Comm’n).
The United States prevailed on the argument that Mogridge was an
American citizen because he was “born within the United States” and he
was “at the time of the alleged injuries, domiciled within the United
States.” Ibid. Before Elk, some believed that the domicile required by
the Citizenship Clause could be acquired after birth. See 112 U. S., at
121–122 (Harlan, J., dissenting). The Government apparently took that
view. What was not an open question was whether the Citizenship
Clause required that a person, as the Mogridge case shows, be “domiciled
within the United States.” Demurrer to Memorial, 22 Mixed Comm’n
No. 345. For good reason, the plaintiffs and the Court chose not to invoke
Mogridge’s case.

68 TRUMP v. BARBARA
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HOMAS, J., dissenting
Part I–B–2, supra. Nobody in Congress, as far as I am
aware, argued that this exclusionary language violated the
Citizenship Clause.
Congress left the language excluding persons “subject to
any foreign power” in place until 1940. See, e.g., Rev. Stat-
utes §1992 (1875) (“All persons born in the United States
and not subject to any foreign power, excluding Indians not
taxed, are declared to be citizens of the United States”); 8
U. S. C. §1 (1934 ed.) (“All persons born in the United
States and not subject to any foreign power are declared to
be citizens of the United States”). It was the governing rule
for the first 72 years after ratification. “[S]uch contempo-
raneous legislative exposition of the Constitution . . . , ac-
quiesced in for a long term of years, fixes the construction
to be given its provisions.” Printz v. United States, 521 U. S.
898, 905 (1997) (internal quotation marks omitted).
The Court has no explanation for the Reconstruction Con-
gress’s 1870 decision to exclude from citizenship all persons
“subject to any foreign power.” It appears to concede that it
cannot reconcile its interpretation of the Citizenship Clause
with that statute. See ante, at 23–25. And, the Court rec-
ognizes that “every child born to” temporary visitors was
subject to a foreign power. See ante, at 24; see also Part I–
B–2–b, supra. According to the Court, then, Congress de-
fied the Citizenship Clause immediately after enacting it.
3
Early judicial precedent supports the same conclusion.
In 1873—five years after ratification—this Court described
the Citizenship Clause in a manner that is, on the Court’s
view, indefensible. It stated that the Clause “exclude[d]
from its operation children of . . . citizens or subjects of for-
eign states born within the United States.” Slaughter-
House Cases, 16 Wall., at 73. The Court rejects that posi-
tion today, but declines to address its previous interpreta-
tion.

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HOMAS, J., dissenting
Likewise, in 1884, this Court interpreted the Citizenship
Clause to require that a person be “not merely subject in
some respect or degree to the jurisdiction of the United
States, but completely subject to [its] political jurisdiction,”
“owing [it] direct and immediate allegiance,” and “owing no
allegiance to any alien power.” Elk, 112 U. S., at 101–102;
accord, id., at 117–122 (Harlan, J., dissenting); Plessy, 163
U. S., at 563 (Harlan, J., dissenting). The Court also rejects
that position today. See ante, at 25.
C
Decades of postratification scholarship interpreting the
Citizenship Clause confirmed this view.
Most interpreters of the Citizenship Clause concluded
that it required domicile. The Citizenship Clause, scholars
said, required that a child born here of alien parents show
that those parents were “permanently domiciled within the
United States.” Robinson, Notes on Elementary Law, at 70.
It excluded those with “allegiance to some other govern-
ment.” Cooley, General Principles of Constitutional Law,
at 243. Children born in the United States, their “parents
not being here domiciled, are not citizens.” Wharton Trea-
tise 1880, at 41. “The words ‘subject to the jurisdiction
thereof,’ . . . exclude[d] the children of foreigners transi-
ently within the United States.” Morse, Treatise on Citi-
zenship, at 248. Children “born in the United States to for-
eigners here on transient residence” were not “subject to the
jurisdiction of the United States.” 2 Wharton Digest 393–
394. A “child born here” to parents “temporarily residing”
was “not a citizen of the United States, because it was not
subject to its jurisdiction.” S. Miller, Lectures on the Con-
stitution of the United States, at 279.
Many more agreed: The Citizenship Clause excluded the
“children of foreign subjects, born while the latter transi-
ently sojourn here.” Lesser, Citizenship and Franchise, 4
Colum. L. Times, at 146. The “children of foreigners, in

70 TRUMP v. BARBARA
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HOMAS, J., dissenting
transient residence, are not citizens.” Hall, Foreign Powers
and Jurisdiction of the British Crown, at 63. “[I]f a stranger
or traveler passing through the country” has “a child born
here, who goes out of the country with his father, such child
is not a citizen.” Black, Handbook of American Constitu-
tional Law 458 (1895). “[C]hildren of foreigners in transi-
ent residence are not citizens.” Hall, International Law, at
236–237 (1895). “One born of parents temporarily in our
country” is not constitutionally guaranteed citizenship be-
cause he “is not born with the stamp of domicile,” so the
“elements of national jurisdiction are wanting.” Ide, Citi-
zenship By Birth—Another View, 30 Am. L. Rev., at 248.
The Citizenship Clause excludes “children of persons pass-
ing through or temporarily residing in this country.” Win-
chester, Citizenship in Its International Relation, 31 Am. L.
Rev., at 504.
***
The Court does not attempt to match this postratification
evidence. To the contrary, the Court acknowledges that—
at least by the 1880s—the Citizenship Clause was under-
stood to require domicile by the “Government,” the “Execu-
tive Branch,” the “State Department,” “scholars,” and “trea-
tises.” Ante, at 14, 21. The Court, though, proposes that
this widespread understanding was not evidence of the
original public meaning of the Citizenship Clause, but a re-
bellion against it. Ibid. The scholars, courts, and govern-
ment officials who held that domicile was required, the
Court says, were engaged in a law-reform effort. Their mo-
tive, the Court seems to say, was to deny citizenship to Chi-
nese immigrants, especially around “the election of Presi-
dent Cleveland, the first Democrat to hold the office since
the Civil War.” Ibid. On this basis, the Court suggests ig-
noring the considerable postratification practice and schol-
arship that is incompatible with its view. Ibid.

Cite as: 609 U. S. ____ (2026) 71
T
HOMAS, J., dissenting
The Court’s account does not make sense. To begin, the
postratification evidence against the Court’s view begins
not “nearly two decades after the Fourteenth Amendment’s
ratification,” but immediately. Ante, at 13. Well before the
Court has any explanation for a departure from its view, all
three branches of the Federal Government had already re-
jected it. In 1870, Congress interpreted the Citizenship
Clause to require that a child born here be “not subject to
any foreign power.” See 16 Stat. 144 (reenacting Act of Apr.
9, 1866, 14 Stat. 27). In 1873, the Supreme Court inter-
preted the Citizenship Clause to “exclude from its operation
children of . . . citizens or subjects of foreign States born
within the United States.” Slaughter-House Cases, 16
Wall., at 72–73. And, the same year, President Grant’s At-
torney General interpreted the Citizenship Clause to ex-
clude the children of “[a]liens” over whom the United States
had “limited” jurisdiction even though they were “born
here.” 14 Op. Atty. Gen., at 300.
If all three branches of the Federal Government were not
enough, many others concurred during these first two dec-
ades. The Court cannot explain why, in the 1870s, William
Robinson wrote that children “born within the territory of
the United States, of alien parents” were not citizens unless
“permanently domiciled within the United States,” Robin-
son, Notes on Elementary Law 70; why California excluded
from citizenship “children of transient aliens,” Political
Code of California §51(1); why Representative Ebenezer
Hoar—President Grant’s first Attorney General and one of
the nation’s most eminent jurists—interpreted the Citizen-
ship Clause to require domicile, 2 Cong. Rec. 3279; see 3 C.
Warren, The Supreme Court in United States History 223–
226 (1924); and why the Executive Branch denied citizen-
ship to a child born here but domiciled abroad, see Letter
from Acting Sec. of State F. Seward to H. Fish (Aug. 20,
1878), in 2 Wharton Digest 396. The Court likewise cannot
explain why, in 1880, Thomas Cooley wrote that the

72 TRUMP v. BARBARA
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HOMAS, J., dissenting
Citizenship Clause excluded children who had any “alle-
giance to some other government.” General Principles of
Constitutional Law in the United States of America 243.
The Court’s theory does not even explain the later evi-
dence that it characterizes as a revisionist project. If, as
the Court suggests, various government officials and schol-
ars were trying to prevent the children of Chinese immi-
grants from being citizens, then they would not have pro-
posed a domicile requirement alone. They would have
needed to propose a citizenship requirement. As Wong Kim
Ark exemplifies, many Chinese immigrants were already
domiciled here; they simply were ineligible for formal natu-
ralization. See 169 U. S., at 652; Part I–E–3, supra. Ac-
cordingly, when the Executive Branch did attempt to ex-
clude the Chinese in the 1890s, it argued against the
domicile rule. See Part I–E–3, supra. Meanwhile, as far as
I can tell, the people excluded by the domicile requirement
were not Chinese, contra, ante at 21, n. 7, but mostly Euro-
pean. Children such as Joseph Speck of Switzerland, Lud-
wig Hausding of Saxony, Richard Greisser of Germany,
Freiderich de Bourry of Austria, and the child of Mary
Deveraux of Ireland are unlikely targets of a campaign of
anti-Chinese discrimination. See Part I–E–1–a, supra.
The more likely explanation for why so many Americans
stated that the Citizenship Clause required domicile is that
the Citizenship Clause required domicile.
D
Many other indicators of original public meaning support
the domicile requirement. I briefly address three.
First, if the Court were right that the Citizenship Clause
did not require domicile, then it would have increased dual
nationality, which would have provoked concern among
19th-century Americans. “The United States has long rec-
ognized the general undesirability of dual allegiances.” Sa-
vorgnan, 338 U. S., at 500. “[A]t the time of ratification,

73 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
exclusive loyalty to the United States had long been a fun-
damental element of American citizenship.” Brief for Pro-
fessor Richard Epstein as Amicus Curiae 12; see also Part
I–B–2–a, supra. The view at the time was that a nation
should “as soon tolerate a man with two wives as a man
with two countries.” Letter from G. Bancroft to Lord Palm-
erston (Jan. 26, 1849), S. Exec. Doc. No. 38, 36th Cong., 1st
Sess., at 164 (1860); see also P. Spiro, Dual Nationality and
the Meaning of Citizenship, 46 Emory L. Rev. 1411, 1430
(1997).
Opposition to dual nationality was especially strong after
the Civil War. “The country had just emerged from a civil
war that cost the lives of over 600,000 men due to a trea-
sonous denial of allegiance to the Union—the United
States. Going forward, there would be no national citizen-
ship absent a reasonable expectation of national alle-
giance.” Lash, 101 Notre Dame L. Rev., at 141 (emphasis
deleted). An 1868 congressional report explained that if a
person was a national of both his home country and the
country of his birthplace, it could “expos[e]” him to compet-
ing claims for “compulsory military service,” or could cause
him to be “summoned to fight for Governments with which
[he] ha[s] no connections, and against those with which
[his] fortunes are indissolubly united.” Report of 1868, at
100; accord, Kawakita v. United States, 343 U. S. 717, 733,
736 (1952). “The intimate association of those who are
claimed as subjects of foreign Governments is such as to put
in peril the rights or peace of all.” Report of 1868, at 100.
Accordingly, this Court has long resisted reading the Citi-
zenship Clause to inhibit the political branches’ ability to
address “problems attendant on dual nationality.” Rogers
v. Bellei, 401 U. S. 815, 831 (1971).
A rule that recognized the citizenship of children born to
temporary visitors would have increased dual nationality.
At the adoption of the Citizenship Clause, as today, most
nations treated the children of their citizens born while

74 TRUMP v. BARBARA
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HOMAS, J., dissenting
temporarily abroad as citizens. See Spiro, 46 Emory L. J.,
at 1426; 1 W. Blackstone, Commentaries on the Laws of
England 373 (1768). As a result, a child born in the United
States of a temporary visitor would have immediately been
a citizen of his home nation. If the Court’s interpretation
were correct, the child would immediately also become a
dual citizen. It is unlikely that the Reconstruction Con-
gress constitutionalized such a rule. By contrast, the dom-
icile requirement mitigated the problem of dual nationality.
Each person had one and only one domicile, so tying citizen-
ship to domicile avoided dual citizenship. See Inhabitants
of Abington, 40 Mass., at 177; accord, Field 147.
Second, the domicile rule aligns national citizenship with
the longstanding rule for state citizenship. Even after the
Court’s decision today, Americans are citizens of only the
State of their domicile, even if it is not the State of their
birth. Wachovia Bank, 546 U. S., at 318. No one doubts
that a child born to New Yorkers on vacation in Florida
would be treated as domiciled in, and a citizen of, New York.
Brief for Sen. Eric Schmitt et al. as Amici Curiae 7, n. 2.
For the same reason, one would think that a child born to
Canadians on vacation in Florida should not be a citizen of
the United States. The Court, in other words, rejects and
is bewildered by an approach to citizenship that is in fact
the one we still know best.
Third, the domicile rule would make the Citizenship
Clause accord with America’s treatment of its own domicil-
iaries abroad. America itself has long taken the position
that children of American citizens born on temporary visits
abroad are American citizens. See, e.g., 8 U. S. C.
§§1401(c), (g); Act of Feb. 10, 1855, 10 Stat. 604; Act of Apr.
14, 1802, 1 Stat. 155; Ludlam, 31 Barb., at 503–504; Cooley,
Principles of Constitutional Law 243, n. 1. Such children
were long considered American citizens because their par-
ents were domiciled in America. See, e.g., United States v.
Gordon, 25 F. Cas. 1364, 1368 (No. 15,231) (SDNY 1861).

75 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
It is unclear why the same reasoning should not apply in
the other direction.
IV
The Court’s alternative history is mistaken.
A
The Court’s theory of the Citizenship Clause stands on
three main pillars: Calvin’s Case, Lynch v. Clarke, and
Wong Kim Ark. None can justify the Court’s decision today.
1
The first pillar of the Court’s theory is Calvin’s Case, a
418-year-old English common-law decision. Calvin’s Case
held that a child born in Scotland could hold land in Eng-
land. See 7 Co. Rep. 1a, 77 Eng. Rep. 377 (K. B. 1608). Ac-
cording to the Court, Sir Edward Coke’s separate opinion in
Calvin’s Case established the “common law” principle called
“jus soli,” pursuant to which people owed perpetual feudal
allegiance to the King of England if they were “‘born within
the dominions’” that he owned. Ante, at 3–4. This principle
applied to all persons born on the land, not just those dom-
iciled there. As the Court tells it, the 1608 feudal principle
as described by Coke was adopted as the law of citizenship
in America and then incorporated by reference in the Citi-
zenship Clause. Ante, at 2–9.
The English principle was a rule of feudal servitude, not
a rule of citizenship. “[I]n England there was no such thing
as a citizen.” Hamburger, Allegiance, Birthright, and Citi-
zenship. The English principle instead determined a per-
son’s permanent feudal bondage to the King, which he could
not unilaterally abandon. It was based on the notion that
“[a] man owed personal service to the lord of the soil, the
same as his master owed it to the king; and it was born with
the child and only ended in the grave”—a relation of “mas-
ter and servant.” 2 Cong. Rec 3279 (statement of Rep. Cox).
“Under the feudal system, every owner of lands held them

76 TRUMP v. BARBARA
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HOMAS, J., dissenting
in subjection to some superior or lord.” 1 Blackstone, Com-
mentaries on the Laws of England, at 367–368. The lord
would “protect the vassal in the enjoyment of the territory
granted him,” while the vassal would “be faithful to the
lord, and defend him against all his enemies.” Ibid.; see
also P. Schuck & R. Smith, Citizenship Without Consent
12–18 (1985).
15
The English feudal principle “was not accepted by the
American governments.” Report of 1868, at 95. As J
USTICE
ALITO explains, the principle that birth on the soil made a
person perpetually bound to the King was premised on the
theory that the King was anointed by God to rule the people
like children. Post, at 4–5 (dissenting opinion). John Ad-
ams famously wrote that the feudal theory meant that “the
common people were held together, in herds and clans, in a
state of servile dependence on their lords” in “a state of total
ignorance of every thing divine and human.” 1 Papers of
John Adams 113 (1977) (Adams). Americans “emphatically
rejected” this theory. Post, at 5 (A
LITO, J., dissenting).
“[T]hey began their settlements, and formed their plan both
of ecclesiastical and civil government, in direct opposition
to . . . the feudal syste[m].” 1 Adams 114. They then dis-
solved “all Allegiance to the British Crown.” Declaration of
Independence ¶32. And, they set up a new system of gov-
ernment in which the people were not regarded as servile
dependents. Instead, the people were sovereign, and the
government derived its legitimacy from them. Declaration
of Independence ¶2. In this new system of government, feu-
dalism had no place. See 1 Adams 111–115; M. Rothbard,
Conceived in Liberty 532–573 (2011). The soil did not be-
long to the government, but to the people. And, those who
——————
15
The English feudal principle was also a product of the “isolated posi-
tion of th[e] island” nation of England, which meant that temporary vis-
its from childbearing foreigners were rare. A. Cockburn, Nationality:
The Law Relating to Subjects and Aliens, Considered With a View to Fu-
ture Legislation 7 (1869); cf. Law of Domicil 5–6.

77 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
were born on it did not owe the government a lifetime of
obeisance or servitude.
The Reconstruction Congress expressly opposed the feu-
dal principle that the Court claims that it adopted. Contra,
ante, at 25–26 (majority opinion). As its Committee on For-
eign Affairs saw the matter, “[t]here is nothing American in
the oath of the land barons of England.” Report of 1868, at
99. It described the English rule’s “claim of indefeasible al-
legiance and perpetual service” as “the symbol of feudalism
and force.” Id., at 96. Instead of the feudal principle, the
congressional Report explained that American law viewed
people as taking on a new citizenship, as relevant here,
when they changed their “domicile.” Id., at 100. The same
year that the Citizenship Clause was ratified, Congress
passed a statute rejecting the feudal principle and explain-
ing that it supported the right of all persons to expatriate
and change their citizenship. Act of July 27, 1868, 15 Stat.
223–224; see Spiro, 46 Emory L. J., at 1427–1428.
In fact, by the 1840s, even English law had evolved. Eng-
land had moved on from “the darkness of the middle ages”
and—as the “subjects of one kingdom began to migrate into
and reside in other countries”—had begun to attach a new-
found “importance to the Law of Domicil.” Law of Domicil
14. Well before the Citizenship Clause, this Court ex-
plained that “the Courts of England ha[d] decided, that a
person who removes to a foreign country, settles himself
there, and engages in the trade of the country, furnishes, by
these acts, such evidence of an intention permanently to re-
side there, as to stamp him with the national character of
the state where he resides.” The Venus, 8 Cranch, at 279.
A year after the Citizenship Clause, a renowned English
case declared that a person’s civil status, “by virtue of which
he has ascribed to him the character of a citizen of some
particular country,” is “governed universally by one single
principle, namely, that of domicil.” Udny v. Udny, (1869)
SC (HL) 441, 457 (Scot).

78 TRUMP v. BARBARA
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2
The second pillar of the Court’s theory is Lynch v.
Clarke—a “single state-court case about citizenship,” ante,
at 19–20, from 1844. Thomas Lynch was a successful busi-
nessman in New York. When he died, he had no will and
no children. Shortly after he died, his brother Bernard and
his niece (through another brother) Julia moved to New
York from Ireland. The New York Legislature then passed
a special statute giving Lynch’s property to Julia Lynch,
subject only to the rights of the “heirs at law of Thomas
Lynch.” 1 Sand. Ch., at 586. The legislature then passed
another special statute giving Lynch’s property to Bernard
Lynch, save for “the claims of heirs of Thomas, and the ex-
isting rights of Julia Lynch.” Ibid. Lynch’s business part-
ner, John Clarke, also claimed a right to property in his es-
tate.
Bernard then brought a bill in equity against both Julia
and Clarke. Julia cited the special statute giving her inher-
itance rights, but also argued that because she was born in
the United States, she inherited all of Thomas’s property
and had other equitable entitlements. That argument
turned on a state-law bar on aliens inheriting real property,
so Julia argued that she was not an alien. She argued,
among other things, that she was not an alien because she
was in fact domiciled in the United States at the time of her
birth: Her father “came here with an intention to remain,
and thereby changed his domicil.” Id., at 632.
The assistant vice chancellor who was assigned the case
held six days of argument, during which Julia Lynch’s citi-
zenship “was not then made a very prominent point.” Id.,
at 588. After argument, the assistant vice chancellor “be-
came so impressed with the importance of the question
upon the citizenship of Julia Lynch” that he asked for sup-
plemental briefing on the issue. Ibid. He then wrote a long
opinion explaining his theory of American citizenship,
which concluded that Julia Lynch was not an alien, but a

79 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
citizen, and therefore entitled to inherit the property.
Within a year, New York replaced the law that the assistant
vice chancellor interpreted with a new law that simply
made aliens eligible to inherit property. See 1845 N. Y.
Laws p. 94. The State shut down his court two years later.
See N. Y. Const., Art. XIV, §8 (1846) (“The offices of Chan-
cellor, . . . Vice-Chancellor, Assistant Vice-Chancellor . . .
are abolished”); 2 Lincoln, The Constitutional History of
New York From the Beginning of the Colonial Period to the
Year 1905, p. 152 (1905).
The Court’s reverence for Lynch v. Clarke is not commen-
surate with its importance. Lynch was not a precedent of
this Court, or any federal court, or any state appellate
court, or even a court of law. Instead, it was decided by a
New York “assistant vice-chancellor” in a court of equity’s
equivalent to a trial court. The assistant vice chancellor,
much like a magistrate judge, had the power to hear “pre-
liminary motion[s] for the suppression of testimony” and
cases “refer[red]” to him by the chancellor. See 1845 New
York Laws p. 263. The assistant vice chancellor’s opinion
on Julia’s citizenship was apparently not reviewed by any
appellate court. See W. Mayton, Birthright Citizenship and
the Civic Minimum, 22 Geo. Immigration L. J. 221, 239–
240 (2008).
Lynch also did not interpret the Citizenship Clause, a
statute using the same language as the Citizenship Clause,
or even a statute that remained in effect at the time of the
Citizenship Clause. Instead, it interpreted a New York
state law. The state law was replaced immediately after
Lynch. See 1 Sand. Ch., at 583, n. a., 620; 1845 N. Y. Laws
p. 94. If a “single, expressly limited opinion from a special-
ized intermediate [federal] court” does not establish a well-
settled meaning that the Court can assume Congress incor-
porated into a federal statute that uses the same language,
Learning Resources, Inc. v. Trump, 607 U. S. 229, 252

80 TRUMP v. BARBARA
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HOMAS, J., dissenting
(2026), then a single state trial equity-court decision inter-
preting a different law certainly does not do so.
16
Lynch also lacked staying power. By the time of the Cit-
izenship Clause, New York’s higher courts had all but ab-
rogated it. In Ludlam v. Ludlam, a New York appellate
court held that the children of those “traveling or sojourn-
ing abroad,” “though born in a foreign country, are not born
under the allegiance, and are an exception to the rule which
makes the place of birth the test of citizenship.” 31 Barb.,
at 503. That decision was affirmed by the New York Court
of Appeals, which stated: “By the law of nature alone, chil-
dren follow the condition of their fathers, and enter into all
their rights. The place of birth produces no change in this
particular.” Ludlam v. Ludlam, 26 N.Y. 356, 368 (1863)
(emphasis deleted); see also Mayton, 22 Geo. Immigration
L. J., at 240 (“shortly thereafter, in Ludlam v. Ludlam, that
state’s highest court with all justices concurring spoke dif-
ferently, saying that birthright citizenship depended on
parentage rather than the ‘boundaries of the place’”).
When the New York Legislature authorized a committee to
codify its laws in 1860, the codification defined birthright
“citizens” as “[a]ll persons born in this state and domiciled
within it, except the children of transient aliens and of alien
public ministers and consuls.” Political Code of New York
§5.
——————
16
New York also stood apart from the rest of the United States in its
affinity for the feudal system on which the assistant vice chancellor’s
theory was based. See D. Ellis, Land Tenure and Tenancy in the Hudson
Valley, 1790–1860, 18 Agricultural Hist. 75 (1944) (explaining that the
Hudson Valley, with its “large manors and estates owned by a closely
knit and politically powerful aristocracy,” was “distinctive, if not unique,
in American history”); Rothbard, Conceived in Liberty 534 (“As early as
the turn of the eighteenth century, New York, in its large Hudson River
manors, was the only colony where feudal landholding retained an im-
portant foothold”); C. Spencer, The Land System of Colonial New York,
16 Proceedings of N. Y. State Hist. Assn. 150, 151 (1917) (noting the
“quasi-feudal tendency” in New York prior to the American Revolution).

81 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
Then, “during the Fourteenth Amendment debates of the
Thirty-Ninth Congress, Lynch went unmentioned. It was
only during the Civil Rights Act [debates] that Lynch ap-
peared—a single mention by a member who played no role
in drafting the Fourteenth Amendment.” Lash, 101 Notre
Dame L. Rev., at 119 (footnote omitted); see Epstein, The
Myth of Birthright Citizenship, at 80 (“At the time of the
debates over the ratification of the Fourteenth Amendment,
moreover, Lynch v. Clarke appeared to play no role”). So,
while this Court’s opinion invokes Lynch 13 times in 26
pages, the entire Reconstruction Congress in the combined
course of deliberations over the Civil Rights Act and the Cit-
izenship Clause mentioned it only once.
3
The third pillar of the Court’s theory is Wong Kim Ark.
The question before the Court today—whether the Citizen-
ship Clause requires the President to recognize citizenship
for the children of all lawful temporary visitors and illegal
aliens—was not before the Court in Wong Kim Ark. In-
stead, the Wong Kim Ark Court held that someone born in
America to parents domiciled in the United States was a
citizen. It rejected the Government’s argument that Wong’s
parents had to be citizens for him to be a citizen at birth.
The Citizenship Order is fully consistent with this deci-
sion. Under the Order, people like Wong remain citizens,
and the Government today nowhere urges the position that
it took in Wong Kim Ark. To the contrary, it invokes au-
thorities that the Government in Wong Kim Ark opposed.
Compare Brief for Petitioner 13–43 (arguing for domicile
rule) with Brief for Appellant in Wong Kim Ark, O. T. 1895,
No. 904, at 13–31 (arguing against domicile rule). The
Court nonetheless leans heavily on dicta from the majority
opinion in Wong Kim Ark, which it takes to have estab-
lished that Wong’s domicile was irrelevant, and that he—a

82 TRUMP v. BARBARA
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HOMAS, J., dissenting
lifelong American—was indistinguishable from a person
who had no meaningful ties to America.
The Court does not ordinarily put so much weight on past
decisions’ discussion of matters not before the Court. “It is
a maxim not to be disregarded,” this Court has always ad-
monished, “that general expressions, in every opinion, are
to be taken in connection with the case in which those ex-
pressions are used.” Cohens v. Virginia, 6 Wheat. 264, 399
(1821). Thus, if they “go beyond the case, they may be re-
spected, but ought not to control the judgment in a subse-
quent suit when the very point is presented for decision.”
Ibid. “Instead, we emphasize, our opinions dispose of dis-
crete cases and controversies and they must be read with a
careful eye to context.” National Pork Producers Council v.
Ross, 598 U. S. 356, 373–374 (2023). After all, “[t]he ques-
tion actually before the Court is investigated with care, and
considered in its full extent,” but “[o]ther principles which
may serve to illustrate it, are considered in their relation to
the case decided, but their possible bearing on all other
cases is seldom completely investigated.” Cohens, 6 Wheat.,
at 399–400. Cf. Trump v. Cook, 609 U. S. ___, ___, n. 3
(2026) (slip op., at 17, n. 3) (“[W]e review judgments, not
statements in opinions” (internal quotation marks and al-
terations omitted)).
Nor is Wong Kim Ark’s dicta so clearly on the Court’s side.
After a long discussion with many internally inconsistent
statements, Wong Kim Ark’s final statement of the rule
comported more closely with the Citizenship Order’s appli-
cation to temporary visitors than with the Court’s view.
The Wong Kim Ark Court concluded that the Citizenship
Clause grants citizenship to “all children here born of resi-
dent aliens, with the exceptions or qualifications” of (1)
“children of foreign sovereigns,” (2) children of foreign “min-
isters,” (3) children “born on foreign public ships,” (4) chil-
dren “of enemies within and during a hostile occupation of
part of our territory,” and (5) “children of members of the

83 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
Indian tribes owing direct allegiance to their several
tribes.” 169 U. S., at 693 (emphasis added). It then reaf-
firmed that “[t]he Amendment, in clear words and manifest
intent, includes the children born within the territory of the
United States, of all other persons, of whatever race or
color, domiciled within the United States.” Ibid. (emphasis
added).
Wong Kim Ark also repeatedly emphasized that its hold-
ing was limited to domiciliaries. See Part I–E–3, supra. It
did so seven times in the first paragraph and repeatedly af-
ter that. Id., at 652. And, presciently, Wong Kim Ark itself
invoked this Court’s oft-repeated reminder that “general
expressions” that “go beyond the case” should not “control
the judgment in a subsequent suit when the very point is
presented for decision.” Id., at 679 (internal quotation
marks omitted). “This is not quite ‘no, no, a thousand times
no,’ but should have sufficed to dissuade the [Court] from
invoking the case with respect to the distinct legal and fac-
tual issues presented here.” Learning Resources, 607 U. S.,
at 254–255, n. 6 (citation omitted).
It is not surprising that Wong Kim Ark limited its holding
to domiciliaries. The Government in Wong Kim Ark stipu-
lated that Wong was domiciled in the United States and ar-
gued that domicile was irrelevant. See Part I–E–3, supra;
Brief for Appellant, O. T. 1895, No. 904, at 13–29. The
Court thus had little reason to consider what rule would
apply to a temporary visitor. The Court was hardly likely
to upset the consensus that the Citizenship Clause required
domicile in a case where the issue was irrelevant given
Wong’s domicile in this country. See Part I–E, supra.
If Wong Kim Ark were so “simple” in establishing the
Court’s rule as to temporary visitors, ante, at 16, that mean-
ing was seemingly lost on many. As a Department of Jus-
tice report confirmed in 1910, a dozen years after Wong Kim
Ark, “it has never been held, and it is very doubtful whether
it will ever be held, that the mere act of birth of a child on

84 TRUMP v. BARBARA
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HOMAS, J., dissenting
American soil, to parents who are . . . temporarily in the
United States, operates to invest such child with all the
rights of American citizenship.” Spanish Treaty Claims
Comm’n, Final Report of William Wallace Brown, Assistant
Attorney-General, p. 124. The Citizenship Clause’s refer-
ence to “jurisdiction” “does not mean that jurisdiction to
which the bodily form of the child is subject from the mo-
ment of its birth,” but instead that “larger jurisdiction,
which, though difficult to define, is well known and under-
stood, the difference between the jurisdiction which is exer-
cised over a visitor and that over one domiciled.” Id., at 125.
In the years following Wong Kim Ark, the Citizenship
Clause was generally understood as limited to children
born of “alien parents, not temporarily resident here, but
permanently domiciled.” Brannon 29. Nothing in Wong
Kim Ark changed the consensus that “children born in the
United States to foreigners here on transient residence are
not citizens, because by the law of nations they were not at
the time of their birth ‘subject to the jurisdiction’” of the
United States. Taylor, International Public Law, at 220;
accord, e.g., Hall, International Law, at 227 (1904) (“[I]t
would seem that the children of foreigners in transient res-
idence are not citizens”); 1 Wharton, Conflict of Laws 42–45
(1905) (“citizens” must be “domiciled”); Guthrie, Lectures,
at 57 (“permanently domiciled and residing here”);
Westlake, International Law, at 220 (when a father is “in
the Union for a transient purpose,” his children “born
within it have his nationality”); Black, Handbook of Ameri-
can Constitutional Law, at 634 (3d ed. 1910) (no citizenship
for child of “a stranger or traveler passing through the coun-
try, or temporarily residing here”); 1 Bellott, Leading Cases
on International Law, at 183 (“[C]hildren . . . of foreigners
in transient residence . . . are excluded from citizenship,
even though born within the United States”).

85 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
4
As for the remainder of the Court’s reasoning, much of it
is self-defeating.
To begin, the Court invokes Frederick Douglass’s state-
ment that “[t]he Constitution knows all the human inhab-
itants of this country as ‘the people.’” Ante, at 7 (quoting 2
Douglass 415). But, temporary visitors are not “inhabit-
ants”; to be an inhabitant, a person must be domiciled. See
T. Cooley, Constitutional Limitations 661 (2d ed. 1871)
(“[O]ne is an inhabitant, resident, or citizen at the place
where he has his domicile”); Crawford v. Wilson, 4 Barb.
504, 520 (NY 1848) (“Inhabitant is defined to be one who
has his domicil in a place,” “‘as distinguished from an occa-
sional lodger or visitor’”); Sears v. Boston, 42 Mass. 250, 251
(1840) (“the domicil, or the fact of being an inhabitant”); Lit-
tlefield v. Inhabitants of Brooks, 50 Me. 475, 478 (1862)
(“where he was an inhabitant—where he had a domicil”).
And, Frederick Douglass himself argued that blacks were
citizens because they were not comparable to temporary
visitors—they were not “aliens”; they were not “exiles”; and
they were not “strangers.” 2 Douglass 255–256. Instead,
they were “Americans,” he said, who—unlike temporary
visitors—“owe equal allegiance to the same government.”
Id., at 255, 265.
Likewise, the Court invokes Attorney General Bates’s
statement that persons born here were “prima facie” citi-
zens. See ante, at 8. But, the Court does not seem to be
aware that this phrase corresponds to the rule of domicile
that the Court rejects. See President and Fellows of Har-
vard College, 22 Mass., at 375 (“[T]he place of birth” is
“prima facie evidence of domicil”); see also, e.g., Overseers of
Readington v. Overseers of Tewksbury, 2 N. J. L., at 289;
Story on Conflict of Laws 45. If a person’s parents were
domiciled abroad, then the prima facie case was overcome.
See Part I–B, supra.

86 TRUMP v. BARBARA
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HOMAS, J., dissenting
Beyond these statements, the Court mainly emphasizes
that the children of temporary visitors owed a partial “alle-
giance” to and were owed partial “protection” from the sov-
ereign. See, e.g., ante, at 10, 17–19. That (undisputed) fact
does not demonstrate that the children of these visitors
were citizens. See Part I–B–2–b, supra. To the contrary,
Senator Trumbull explained that the Civil Rights Act was
written to avoid this very misunderstanding: The Act said
“not subject to any foreign power” instead of “owing alle-
giance” to the United States precisely because temporary
visitors owed a partial allegiance to the United States, and
he did not want anyone to mistakenly conclude that the Act
included the children of temporary visitors. Cong. Globe,
39th Cong., 1st Sess., at 572. The language chosen thus
excluded temporary sojourners, who “continue[d] to owe al-
legiance to [their] native country.” 1 Z. Swift, A System of
the Laws of the State of Connecticut 164 (1795); accord,
Ludlam, 31 Barb., at 503.
Finally, the Court relies on general statements without
recognizing that those statements are also compatible with
my view of the Citizenship Clause. The Citizenship Clause
indeed followed the pre-existing law, see, e.g., ante, at 9, but
the pre-existing law was based on domicile, see Part I–A,
supra; children born here to foreign parents indeed were
generally citizens, see e.g., ante, at 5, but that is because
they were generally domiciled here, see Part I–A, supra;
and citizenship did indeed almost always follow birthplace,
see, e.g., ante, at 8–9, but that is because birthplace almost
always followed domicile, see Part I–A, supra.
B
The Court’s responses to my view also undermine its own.
The Court criticizes my view for depending on “the parents’
status, not the child’s.” Ante, at 14. But, the Court’s view
depends on the “parents’ status,” too. The Court, for exam-
ple, excludes from citizenship the children of

87 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
“representatives of foreign sovereigns” or enemy invaders.
Ante, at 3, 15. Unless newborn babies are serving as inter-
national diplomats, the Court’s account thus turns on par-
ents’ status. Along the same lines, the Court asks why
“[w]ords appearing frequently in the Executive Order—
‘mother,’ ‘father,’ ‘lawful,’ ‘temporary’—are absent from the
Clause.” Ante, at 22. But, again, if that is a problem, then
it is one for the Court’s theory as well. After all, the Court’s
exceptions—for “foreign representatives,” “Indians,” and in-
vading “enemies”—do not appear in the Clause, either. Fi-
nally, the Court suggests that “domicile” is a difficult con-
cept to apply. See ante, at 20. But, “‘[d]omicile’ is, of course,
a concept widely used in both federal and state courts for
jurisdiction and conflict-of-laws purposes, and its meaning
is generally uncontroverted.” Mississippi Band of Choctaw
Indians v. Holyfield, 490 U. S. 30, 48 (1989). And, the
Court’s concept poses its own administrability questions.
The Court never explains, for example, what happens when
a child is born to a citizen and a diplomat or to a citizen and
a member of an invading army.
The Court also suggests that my interpretation of the Cit-
izenship Clause is not consistent with the Civil Rights Act’s
“not subject to any foreign power” requirement because a
foreign nation can purport to exercise power over its origi-
nal citizens even after they establish a domicile here. Ante,
at 23–24. But, the Court’s interpretation of the Citizenship
Clause does not even attempt to be consistent with the Civil
Rights Act’s requirement, since the children of temporary
visitors are clearly subject to the foreign power of their
homeland. See Part I–B–2, supra. Regardless, the Court is
wrong about domiciliaries’ remaining “subject to” the for-
eign power of their country of birth. Although their nation
of origin might purport to exercise jurisdiction over them,
the United States would not have had to recognize that au-
thority as lawful once those persons were domiciled here.
See Part I–B–2, supra.

88 TRUMP v. BARBARA
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HOMAS, J., dissenting
The Court ultimately denigrates the evidence in support
of my position as “scant.” Ante, at 18. I see it differently.
The Court cites little evidence from the Reconstruction Con-
gress that gave us the Citizenship Clause. And, its other
19th-century evidence is slim in comparison. As for the ev-
idence in support of my position, it is substantial. Repre-
sentative Bingham, the architect of the Fourteenth Amend-
ment, believed that the Citizenship Clause would not apply
to the children of temporary visitors. Senator Trumbull, a
principal champion of the Amendment, agreed. Jacob How-
ard, who introduced the Citizenship Clause, agreed. Con-
gressman after Congressman during the legislative debates
agreed. Congress in 1870 agreed. President Grant’s Attor-
ney General agreed. President Grant’s Attorney General
before that agreed. The Supreme Court in 1873 agreed.
State legislatures agreed. Executive Branch decisionmak-
ers over the course of multiple decades agreed. Justice Mil-
ler agreed. Thomas Cooley agreed. A battery of other emi-
nent scholars agreed. And, the great Justice John Marshall
Harlan, on three separate occasions, agreed. Once again, “I
am quite comfortable in the company I keep.” Parents In-
volved in Community Schools v. Seattle School Dist. No. 1,
551 U. S. 701, 772 (2007) (T
HOMAS, J., concurring).
V
Before concluding, I briefly address plaintiffs’ argument
that even if the Citizenship Order has at least some lawful
applications consistent with the Citizenship Clause, it is
not consistent with the statutory citizenship provision in
force today. The Court gives no independent import to the
statutory citizenship provision, and I would not, either.
From 1866 until 1940, the statutory citizenship provision
required that a person claiming citizenship based on birth
in the United States be “not subject to any foreign power.”
See 16 Stat. 144; 14 Stat. 27. That language from the Civil
Rights Act, like the language of the Citizenship Clause,

89 Cite as: 609 U. S. ____ (2026)
T
HOMAS, J., dissenting
required that a person claiming citizenship have a domicile
in the United States. See Part I–B–2–b, supra. So, both
the statute and the Constitution required domicile until at
least 1940. See Part I, supra.
The Nationality Act of 1940 codified the existing law by
enacting the Citizenship Clause’s text. “By the early
1930’s, the American law on nationality . . . was expressed
in a large number of provisions scattered throughout the
statute books.” Perez v. Brownell, 356 U. S. 44, 52 (1958).
President Roosevelt designated a committee to review ex-
isting nationality laws and, as relevant here, “to codify
those laws into one comprehensive nationality law.” Revi-
sion and Codification of the Nationality Laws of the United
States, Exec. Order No. 6115 (Apr. 25, 1933). As a result of
that process, Congress enacted the Nationality Act in 1940.
54 Stat. 1137; see Perez, 356 U. S., at 56. The Nationality
Act was the “first attempt ever made since the founding of
our Republic to codify and unify all the laws of the United
States relating to the important subjects of nationality and
naturalization.” G. Knight, Nationality Act of 1940, 26 A.
B. A. J. 938 (1940).
A codification of existing law does not change the law un-
less it does so clearly. When legislatures “consolidate their
statutes at large into a code,” they “often revise the wording
of the prior statute to provide for consistency of expression.
But that revision does not result from legislative reconsid-
eration of the substance of codified statutes.” A. Scalia &
B. Garner, Reading Law 257 (2012). The same is true for
“legislative restyling exercises short of codification.” Ibid.
Such “new language does not amend prior enactments un-
less it does so clearly.” Ibid.; see also, e.g., Walters v. Na-
tional Assn. of Radiation Survivors, 473 U. S. 305, 318
(1985); Wingo v. Wedding, 418 U. S. 461, 469, and n. 9
(1974); Rainbow Nav., Inc. v. Department of Navy, 783 F.
2d 1072, 1076 (CADC 1986) (Scalia, J., for the court).

90 TRUMP v. BARBARA
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HOMAS, J., dissenting
The Nationality Act’s citizenship provision codified the
Civil Rights Act’s “not subject to any foreign power” require-
ment and the Citizenship Clause’s “subject to the jurisdic-
tion” requirement. It did so by borrowing language from
the Citizenship Clause, which granted citizenship to all per-
sons “born in the United States, and subject to the jurisdic-
tion thereof.” 54 Stat. 1138. By using language that
tracked the Citizenship Clause, Congress did not clearly
change the law. “It would be surprising to discover that
Congress departed from the constitutional standard by en-
acting the exact constitutional language.” S. Menashi, The
Birthright Citizenship Debate, 49 Harv. J. L. & Pub. Pol’y
301, 313 (2026).
VI
The Fourteenth Amendment was enacted in the wake of
the Civil War, “with the one pervading purpose” of securing
equal citizenship for the freed slaves. Slaughter-House
Cases, 16 Wall., at 71. It was enacted, as Justice Harlan
wrote, “to secure to a race recently emancipated” the “civil
rights” that other citizens enjoyed. Plessy, 163 U. S., at
555–556.
This Court has time and again denied Americans that
promise. Shortly after the Amendment was ratified, this
Court deprived black citizens of the right to peaceably as-
semble and to keep and bear arms. See United States v.
Cruikshank, 92 U. S. 542 (1876); see McDonald, 561 U. S.,
at 808–809 (T
HOMAS, J., concurring in part and concurring
in judgment). A little later, in Plessy, the Court upheld the
subjugation of black citizens in the form of state-coerced ra-
cial segregation. 163 U. S. 537. When it had an opportunity
to correct that profound error, it did so narrowly. See
Brown v. Bd. of Ed., 347 U. S. 483, 494, and n. 11 (1954). It
then used that very decision to justify busing American
children to different schools based on their race. See Swann
v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 (1971).

91 Cite as: 609 U. S. ____ (2026)
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HOMAS, J., dissenting
And, until recently, this Court continued to selectively en-
force our colorblind Constitution, including by allowing
state-coerced racial discrimination in public education, e.g.,
Grutter v. Bollinger, 539 U. S. 306 (2003), and compelling
States to draw political districts on the basis of race, e.g.,
Allen v. Milligan, 599 U. S. 1 (2023).
Meanwhile, the Court has repurposed the Fourteenth
Amendment to protect its own set of preferred rights that
the Reconstruction Congress never contemplated and that
cannot find support in its text. Today, the Court does so
again by recognizing a constitutional right to citizenship for
the children of all foreign birth tourists and illegal aliens.
VII
I am not sure that today’s opinion will stand the test of
time. The Citizenship Clause “added greatly to the dignity
and glory of American citizenship.” Plessy, 163 U. S., at 555
(Harlan, J., dissenting). Today’s opinion devalues that cit-
izenship. I respectfully dissent.

_________________
_________________
1 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 25–365
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES,
ET AL., PETITIONERS v. BARBARA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 30, 2026]
JUSTICE ALITO, dissenting.
This is one of the most important decisions in the history
of the Court, and in my judgment, the Court has made a
serious mistake. As interpreted by the Court today, the
Fourteenth Amendment confers citizenship on virtually
everyone who happens to be born in this country, including
the children of “birth tourists,” women who come here solely
for the purpose of giving birth to a child and then promptly
return home. Careful analysis of the text of the Fourteenth
Amendment and the process that led to its adoption shows
that it does not degrade the concept of United States citi-
zenship in this way. Instead, the Fourteenth Amendment
confers citizenship on only those children who, at birth, owe
allegiance solely to this country.
Respecting this interpretation would not require uproot-
ing the millions of children who were born here to mothers
who entered or remained in this country illegally. Those
children are not responsible for their parents’ violation of
our immigration laws, and their plight is the result of a long
period during which a coterie of actors—Executive Branch
officials, States and cities, and a variety of private groups—
sent the message to would-be immigrants that our

2 TRUMP v. BARBARA
A
LITO, J., dissenting
immigration laws should not be taken too seriously. This
message, coupled with ineffective or unenthusiastic en-
forcement, spurred massive illegal immigration and the
growth of a large contingent of people who were born here
to mothers unlawfully present in this country. Some mem-
bers of this group have lived here for years, and they have
a strong moral claim to be able to remain in the land where
they grew up.
Congress can and should address their situation. The
Fourteenth Amendment dictates who must be a citizen, but
it does not address who may be a citizen by Act of Congress.
Congress has conferred citizenship on many people who are
not made citizens by the Fourteenth Amendment, including
children born abroad to American citizen parents. These
people and the millions of immigrants who have been natu-
ralized are no less American than those who are fortunate
enough to be born here.
For these reasons, the original meaning of the Fourteenth
Amendment does not require inhumane results, and we
should not adopt an erroneous interpretation of the Four-
teenth Amendment simply out of fear of the consequences
of “rocking the boat” or as a reaction to current immigration
policy.
Nor should we take the position that our hands are tied
by dicta in a sprawling 19th-century opinion that is, to put
the point gently, very far from a model of careful judicial
craftsmanship. Too much is at stake.
United States citizenship is precious. Anyone who has
attended a ceremony where citizens are naturalized can see
that message on the faces of those who take the citizenship
oath. Before saddling the Nation with a medieval rule, we
had better be certain the Constitution requires it.
The Court’s account of the birthright-citizenship rule in
American law is roughly as follows. After American inde-
pendence, the British rule of birthright subjecthood was
modified in just one way (to take account of Indians who

3 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
lived under tribal governance), but otherwise the rule was
transplanted intact to American soil. As modified, the rule
was that a child born in this country is automatically an
American citizen unless the child is born to tribal Indians
or to a diplomat with immunity from legal process. During
the period before the Civil War, the rule’s status was firm.
After the war, Congress codified the rule in §1 of the Four-
teenth Amendment. And in United States v. Wong Kim Ark,
169 U. S. 649 (1898), this Court issued a binding precedent
confirming what Congress had done.
Every step of this story is incorrect. The Declaration of
Independence repudiated the foundation on which the Brit-
ish rule was based. See infra, at 5. From 1776 until the eve
of the Civil War, the status of the rule in this country was
unsettled. There is no evidence establishing that the Con-
stitution’s references to citizens incorporated the British
rule, infra, at 5–8, and until the eve of the Civil War, there
was little litigation about the meaning of American citizen-
ship, infra, at 9–11. After the war, Congress finally adopted
a constitutional provision, §1 of the Fourteenth Amend-
ment, making certain persons citizens at birth, but that
provision differed substantially from the British rule. It
specified that a person born here is not a citizen unless his
allegiance to the United States is unimpaired by any obli-
gations to a foreign power. Infra, at 11–22. And while
Wong Kim Ark included dicta suggesting that the Four-
teenth Amendment incorporates the British rule, its actual
holding was much narrower, infra, at 22–28, and under
that interpretation, respondents’ challenge to Executive
Order No. 14160, Protecting the Meaning and Value of
American Citizenship, fails, infra, at 36–39.
I
A
According to the Court, the Fourteenth Amendment’s Cit-
izenship Clause codified the British rule of birthright

4 TRUMP v. BARBARA
A
LITO, J., dissenting
subjecthood with only one new exception, which was needed
to accommodate the unique status of American Indians.
That is a curious claim, and it is ironic that the Court
should embrace it only days before we celebrate the 250th
anniversary of our Declaration of Independence, which em-
phatically renounced the foundation on which the British
rule rested.
That rule did not concern “citizenship.” There was no
such thing as a “citizen” of England, Scotland, or Ireland.
The inhabitants of the British Isles were the King’s “sub-
jects.” As Sir Edward Coke explained in Calvin’s Case, 7
Co. Rep. 1a, 77 Eng. Rep. 377 (K. B. 1608), they acquired
that status automatically at birth, and they retained it, like
it or not, until they died. Id., at 4b, 77 Eng. Rep., at 382;
see id., at 9b, 77 Eng. Rep., at 388 (even a subject who ab-
jures the realm “oweth the King his ligeance”). This status
arose from a feudal understanding of the origin of govern-
mental authority and the relationship between those who
govern and those who are governed. The King’s authority
was understood to come from God. Id., at 12b–13a, 77 Eng.
Rep., at 390–391. As Coke put it, a King ruled by the law
of nature. Ibid. And birth established the bond between
King and subject, id., at 4b, 77 Eng. Rep., at 382, just as
birth establishes the bond between parent and child.
In Calvin’s Case, the question was whether a man born
in Scotland was a subject of King James I of England, who
acceded to the thrones of both Scotland and England before
the man’s birth. Id., at 2a, 77 Eng. Rep., at 379. In a fa-
mous speech to Parliament, James I forcefully explained his
views about the source of his authority and his relationship
with his subjects. The King, he proclaimed, sits “upon
G
OD[’]s throne” and is the “father of his people.” March 21,
1609 A Speach to the Lords and Commons of the Parlia-
ment at White-Hall, in The Political Works of James I,
p. 307 (C. McIlwain ed. 1918).

5 Cite as: 609 U. S. ____ (2026)
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LITO, J., dissenting
This theory of monarchical power and the status of the
people provided the foundation on which the rule of birth-
right subjecthood stood. Just as a person automatically ac-
quires at birth all that is entailed by the relationship be-
tween parent and child, a person born within the King’s
dominion automatically became the King’s subject. Cal-
vin’s Case, 7 Co. Rep., at 4b, 77 Eng. Rep., at 382. This
meant that the subject acquired a duty of obedience to the
King, and the King owed a duty of protection to the subject.
Ibid. This relationship was not based on consent, and a
subject could not shed it. Ibid.; see id., at 9b, 77 Eng. Rep.,
at 388.
In this system of soil and servitude, the Court sees
“emancipation.” Ante, at 26. But our Founders disagreed.
The Declaration of Independence emphatically rejected the
British theory of government. It proclaimed that govern-
ments “deriv[e] their just powers from the consent of the
governed,” not divine right. ¶2. And it “[a]bsolved” the peo-
ple of the United States “from all Allegiance to the British
Crown.” ¶32.
With its foundation blown away, the British rule of birth-
right subjecthood was not suited for easy incorporation into
American law. Accord, ante, at 75–77 (T
HOMAS, J., dissent-
ing). In addition to the incompatibility of its theoretical
foundation, two distinctively American practical problems
stood in the way.
The first was the problem of slavery and, more broadly,
of race. In England itself, the number of slaves had never
approached American dimensions. Just four years before
the American Colonies declared independence, Lord Mans-
field’s decision in Somerset v. Stewart, Lofft. 1, 98 Eng. Rep.
499 (K. B. 1772), denied that slavery had any common-law
foundation. See id., at 19, 98 Eng. Rep., at 510 (proclaiming
that slavery was “so odious, that nothing can be suffered to

6 TRUMP v. BARBARA
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LITO, J., dissenting
support it, but positive law”). And it would soon disappear.
1
In the United States, on the other hand, nearly 700,000
lived in slavery—roughly one-fifth of the country’s popula-
tion—according to the first census in 1790. And since the
contemporary definition of a citizen was a “freeman of a
city; . . . not a slave,” 1 S. Johnson, A Dictionary of the Eng-
lish Language (4th rev. ed. 1773), it was obvious that nei-
ther the Articles of Confederation nor the Constitution,
both of which allowed slavery to continue, recognized the
members of this sizeable population as citizens.
Even for the free black population of the United States,
there was substantial opposition to application of the Brit-
ish rule. Many States, both in the South and Midwest, re-
stricted the rights traditionally associated with citizen-
ship—such as the ability to settle, vote, and serve as a
witness in court—to white residents.
2
And there was some
federal support for this understanding of citizenship.
3
In
Britain, on the other hand, as the Court notes, the common
law did not take account of race. Ante, at 5–6.
The second problem was the unique legal status of Indian
tribes in the United States. Under the Clause of the Con-
stitution allocating seats in the House of Representatives
and Presidential electors, “Indians not taxed” were ex-
cluded from the body politic and thereby denied citizenship.
Art. I, §2, cl. 3. This provision did not require census takers
to determine whether individual Indians owed or paid
taxes. Instead, the phrase referred to those Indians who
retained their traditional way of life. They lived in their
own communities under tribal law and enjoyed the
——————
1
See W. Cotter, The Somerset Case and the Abolition of Slavery in
England, 79 History 31, 33, and nn. 6–8 (1994).
2
See, e.g., Ind. Const., Art. XIII (1851); Ill. Const., Art. VI, §1 (1848);
Mo. Const., Art. III, §26 (1820); 1783 Md. Acts ch. 23, §3.
3
Under the Naturalization Act of 1790, only a “free white person” could
become a citizen. Ch. 3, 1 Stat. 103; but see 37 Annals of Cong. 83 (1820)
(Senator Holmes arguing that “[f]ree blacks are citizens”).

7 Cite as: 609 U. S. ____ (2026)
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LITO, J., dissenting
“privilege of total immunity from State taxation.” The Kan-
sas Indians, 5 Wall. 737, 756 (1867); see also Worcester v.
Georgia, 6 Pet. 515, 559–561 (1832). It is hard to find esti-
mates of the size of this segment of the population at the
end of the 18th century, but it was certainly significant.
The existence of these two big carveouts refutes any ar-
gument that the British rule was transplanted without
modification to American soil. Accord, ante, at 62–63
(T
HOMAS, J., dissenting). And any attempt to plant some
version of that rule here also faced the problem of applying
it to a Nation that, unlike Britain, had a written Constitu-
tion and a federal system.
In Britain, the rule of birthright subjecthood was part of
the common law and thus could be changed by Parliament
whenever it chose. If the rule was transplanted across the
Atlantic, would it have a similar status here? Would it be
part of the common law that state legislatures or courts
could alter or abandon? See Van Ness v. Pacard, 2 Pet. 137,
144 (1829) (Americans adopted “only that portion [of the
common law] which was applicable to their situation”).
Alternatively, did the rule have some status under fed-
eral law? Numerous provisions of the Constitution use the
term “citizen.” See Art. I, §2, cl. 2 (qualifications of Mem-
bers of the House of Representatives); Art. I, §3, cl. 3 (qual-
ifications of senators); Art. II, §1, cl. 5 (Presidential eligibil-
ity); Art. III, §2, cl. 1 (subjects of jurisdiction); Art. IV, §2,
cl. 1 (privileges and immunities). Did all these provisions
incorporate the British rule of birthright subjecthood?
In this case, because we are concerned with the meaning
of citizenship under the Constitution, it is the second alter-
native that is important for present purposes. In Lynch v.
Clarke, 1 Sand. Ch. 583 (N. Y. Ch. 1844), a decision on
which the Court, respondents, and many amici heavily rely,
the assistant vice-chancellor of New York suggested that
the Constitution’s references to “citizen” incorporated the

8 TRUMP v. BARBARA
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LITO, J., dissenting
British rule, id., at 647, 655–657, but that is far from obvi-
ous.
Nothing in the records of the Constitutional Convention
supports that conclusion, and the British rule would be a
poor fit as an interpretation of the term “citizen” in the pro-
visions governing the qualifications of Members of Con-
gress and the President. An early draft of the Constitution
provided that a Representative must have been a “‘citizen
of the United States’” for at least three years, but there was
opposition to this provision. 2 Records of the Federal Con-
vention of 1787, p. 216, n. 3 (M. Farrand ed. 1911). One
delegate argued that three years was not enough, in part
because “a rich foreign Nation, for example Great Britain,
might send over her tools who might bribe their way into
the Legislature for insidious purposes.” Id., at 216. In re-
sponse, the delegates voted to require seven years’ citizen-
ship for Representatives and nine years’ citizenship for Sen-
ators.
The Presidential Eligibility Clause, Art. II, §1, cl. 5, had
a similar aim, but it went even further. Not only does it
require 14 years’ residence, it also requires that a President
be a citizen from birth. Its purpose was to prevent a person
with possible foreign loyalties from becoming President,
4
and the British rule hardly seems consistent with that aim.
——————
4
On July 25, 1787, John Jay sent George Washington a letter suggest-
ing that it would be “wise & seasonable to provide a strong check to the
admission of Foreigners into the administration of our national Govern-
ment; and to declare expresly that the Command in chief of the american
army shall not be given to, nor devolve on, any but a natural born Citi-
zen.” Letter from J. Jay to G. Washington (July 25, 1787), in 3 Records
of the Federal Convention of 1787, at 61. Shortly thereafter, the phrase
was added. In his Commentaries on the Constitution, Joseph Story ex-
plained that the purpose of the natural-born citizenship provision was to
“cu[t] off all chances for ambitious foreigners, who might otherwise be
intriguing for the office; and interpos[e] a barrier against those corrupt
interferences of foreign governments in executive elections.” 3 Commen-
taries on the Constitution of the United States §1473, p. 333 (1833).

9 Cite as: 609 U. S. ____ (2026)
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LITO, J., dissenting
B
No case concerning the meaning of the term “citizen” in
any constitutional provision reached the Supreme Court
until Dred Scott v. Sandford, 19 How. 393 (1857). Before
then, the British rule did figure in a handful of antebellum
Supreme Court decisions, but none of these addressed any
constitutional question, and most appear to have regarded
the British rule as part of state law on eligibility to inherit
property. See Inglis v. Trustees of Sailor’s Snug Harbour in
City of New York, 3 Pet. 99, 120–127 (1830); Shanks v.
Dupont, 3 Pet. 242, 245–250 (1830); Lessee of Levy v.
McCartee, 6 Pet. 102, 109 (1832).
Not only were there no Supreme Court decisions on the
constitutional question, there was not much litigation of
any kind on the question of United States citizenship. Both
Lynch in 1844, 1 Sand. Ch., at 663, and an 1862 opinion by
Attorney General Bates, 10 Op. Atty. Gen. 382, 383, ex-
pressed surprise at this dearth. And in our time, when the
difference between citizenship and alienage is a hot issue,
this dearth may seem very strange. But some obvious ex-
planations come readily to mind.
The question of citizenship came up regularly in cases in
which the jurisdiction of a federal court was invoked based
on diversity of citizenship, but the issue in those cases was
whether one or more of the parties were citizens of a partic-
ular State, not whether they were citizens at all. A party
wishing to challenge federal jurisdiction had no incentive to
argue that an adverse party was an alien because both Ar-
ticle III of the Constitution and §11 of the Judiciary Act of
1789, 1 Stat. 78, conferred jurisdiction over cases between
citizens and aliens. Therefore, an adverse party who
showed that a supposedly diverse citizen was actually not a
citizen at all would have confirmed the jurisdiction he
sought to oust.
As for the other constitutional provisions that use the
term “citizen,” it appears that the question simply did not

10 TRUMP v. BARBARA
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LITO, J., dissenting
come up. A reason why the issue did not arise regarding
the qualifications of Members of Congress may be that for-
eign-born individuals who were interested in holding office
could easily become citizens. Under the Naturalization Act
of 1790, a foreigner became an American citizen simply by
proving two years of residence and good moral character.
Act of Mar. 26, 1790, 1 Stat. 103–104.
In the years before the Civil War—and indeed, until
many years thereafter—the distinction between citizens
and aliens meant less than it does today. During that pe-
riod, immigration was unrestricted, so aliens could come
and stay as long as they wanted. M. LeMay, An Overview
of Immigration to the United States: Founding to 1865, in
1 Transforming America: Perspectives on U. S. Immigra-
tion 1 (2013). And in an era when transatlantic travel was
slow, unpleasant, expensive, and sometimes perilous, it is
likely that the vast majority of those who sailed across the
Atlantic intended to remain.
If that was their choice, naturalization, as noted, was
easy. And if for whatever reason a person who intended to
make a permanent home here did not do what was needed
to apply for naturalization, the lack of citizenship did not
matter as much as it would in later years. In some places,
aliens could even vote and hold elective office. Id., at 17.
Whatever the reasons, the issue of citizenship came up in
only a few cases, and except for those involving the question
of citizenship for free black people, the cases did not involve
questions of much public importance. Legal treatises, to be
sure, included comments on birthright citizenship, but
those comments were not informed by judicial decisions.
The important point for present purposes is that during
the antebellum period, there was no settled understanding
about the meaning of citizenship under the Constitution.
And there certainly was no settled understanding about the
citizenship of a child born on United States soil to parents

11 Cite as: 609 U. S. ____ (2026)
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LITO, J., dissenting
whose presence in the country was unlawful. That was a
situation that could not have occurred.
II
A
After the Civil War, Congress faced enormous challenges,
and one of these was ensuring that all black Americans,
both the newly freed slaves and those who were free before
the war, would be treated as citizens of the United States
and of the States in which they lived. Congress addressed
that issue in the landmark Civil Rights Act of 1866 and
then again in the Fourteenth Amendment. For the first
time in the Nation’s history, these enactments provided a
national rule on citizenship, and the meaning of that rule is
the question that the Court now addresses.
In tackling that question, an avowedly textualist Court
should start by carefully examining the text of the Citizen-
ship Clause of the Fourteenth Amendment. FDA v. Alli-
ance for Hippocratic Medicine, 602 U. S. 367, 378 (2024)
(“[W]e begin as always with the precise text of the Consti-
tution”); Dobbs v. Jackson Women’s Health Organization,
597 U. S. 215, 235 (2022) (“Constitutional analysis must
begin with ‘the language of the instrument’” (quoting Gib-
bons v. Ogden, 9 Wheat. 1, 189 (1824))); see, e.g., District of
Columbia v. Heller, 554 U. S. 570, 576 (2008) (beginning
with an analysis of the Second Amendment’s text).
That Clause states: “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.”
Thus, birthright citizenship has two separate elements.
First, a person must be “born in the United States,” and
second, he or she must be “subject to the jurisdiction
thereof.” It is therefore critical to ascertain the meaning of
“subject to the jurisdiction thereof.” And that is no easy
task because, as we have often remarked, jurisdiction is a

12 TRUMP v. BARBARA
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LITO, J., dissenting
term of many meanings. Wilkins v. United States, 598 U. S.
152, 156 (2023). We must therefore determine which one
applies here.
If “subject to the jurisdiction” of the United States had
been a term of art during Reconstruction, we would presum-
ably hold that the phrase has that meaning in the Four-
teenth Amendment. See, e.g., George v. McDonough, 596
U. S. 740, 746 (2022). But that phrase was not a term of
art, and the Court does not claim it was.
If the Citizenship Clause set out specifically named ex-
ceptions to the general rule of citizenship by birth, our job
would be easy; we would follow those exceptions. But the
Citizenship Clause is framed differently. It sets out a gen-
eral rule: Citizenship is not conferred upon a person born in
the United States unless that person is also “subject to the
jurisdiction” of the United States. By its terms, that rule
applies across the board. And when a legislative body
chooses to adopt a generally worded rule, we apply it in all
circumstances that fall within the rule, not just those that
were on the minds of the legislators at the time of adoption.
NLRB v. SW General, Inc., 580 U. S. 288, 306 (2017); On-
cale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79
(1998); Brogan v. United States, 522 U. S. 398, 403 (1998).
We approach constitutional interpretation similarly. Ante,
at 5–7 (K
AVANAUGH, J. concurring in judgment and dissent-
ing in part).
So what does the phrase “subject to the jurisdiction
thereof ” mean? Unfortunately, the text of the Fourteenth
Amendment does not provide a definitive answer, but it
supplies two valuable clues.
First, §1 of the Fourteenth Amendment uses the word “ju-
risdiction” twice—once in the Citizenship Clause and once
in the Equal Protection Clause—and the wording of the two
clauses differs. The Citizenship Clause applies to those
“subject to the jurisdiction” of the United States, whereas
the Equal Protection Clause applies to “any person within

13 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
[a State’s] jurisdiction.” When Congress uses disparate lan-
guage (especially in the same provision), we presume that
the difference matters. Pulsifer v. United States, 601 U. S.
124, 149 (2024); Southwest Airlines Co. v. Saxon, 596 U. S.
450, 457–458 (2022); A. Scalia & B. Garner, Reading Law
170 (2012). Therefore, we must presume that the scope of
the two provisions is different. Accord, ante, at 64 (T
HOMAS,
J., dissenting).
Second, the phrase “subject to the jurisdiction” of the
United States applies not only to those who are born in this
country but also to those who are “naturalized.” After all,
Congress would not include both qualifiers unless they
were both doing some work. See Bufkin v. Collins, 604 U. S.
369, 386 (2025). Accordingly, there must be some people
who are naturalized but are not “subject to the jurisdiction”
of the United States. In other words, whatever “subject to
the jurisdiction” of the United States means, it must mean
something that is not inherent in naturalization.
B
1
Although the text of the Fourteenth Amendment provides
these clues, we must look beyond that text to find a full ex-
planation of the phrase “subject to the jurisdiction” of the
United States. The terms of the 1866 Civil Rights Act
(CRA) provide that explanation. The CRA includes its own
citizenship clause, and the circumstances surrounding Con-
gress’s adoption of the CRA and the Fourteenth Amend-
ment make clear that the two provisions were understood
to be substantively the same. Accord, ante, at 26–31
(T
HOMAS, J., dissenting).
The 39th Congress debated the CRA from January to
March 1866, when it was passed and sent to President
Johnson for his signature.
5
Congress debated the
——————
5
President Johnson vetoed the bill, but Congress overrode the veto in
April 1866.

14 TRUMP v. BARBARA
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LITO, J., dissenting
Fourteenth Amendment from April to June 1866, when it
was adopted and sent on to the States. Thus, during a 6-
month period, the same Congress debated two provisions
that addressed the very same question and adopted them
both. Those circumstances in themselves make it highly
unlikely that the two provisions differed in substance.
In addition, one of the chief reasons for the adoption of
the Fourteenth Amendment was to prevent the CRA from
being held unconstitutional. (President Johnson had cited
the unconstitutionality of the CRA as one of the reasons
why he vetoed it. See Cong. Globe, 39th Cong., 1st Sess.,
1680 (1866).) If the CRA had granted birthright citizenship
to persons who were not entitled to citizenship by birth un-
der the Fourteenth Amendment, there would still have
been doubts about the CRA’s constitutionality. So at a min-
imum, the Fourteenth Amendment’s text had to be at least
as generous as its CRA counterpart. Moreover, following
the ratification of the Fourteenth Amendment, Congress
reenacted the CRA in 1870. 16 Stat. 144. That reenact-
ment would have been pointless if the CRA’s test for birth-
right citizenship were less generous than the Fourteenth
Amendment’s. For all these reasons, it is abundantly clear
that the tests for birthright citizenship in the Fourteenth
Amendment and the CRA were substantively identical.
I therefore turn to the text of the CRA’s citizenship pro-
vision. It provided that “all persons born in the United
States and not subject to any foreign power, excluding Indi-
ans not taxed, are hereby declared to be citizens of the
United States.” §1, 14 Stat. 27.
That language preserved two exceptions that were well-
known and well-accepted at the time. The first was for the
children of diplomats. The second was for Indians who had
not left their traditional way of life and continued to live
with other members of their tribes under the governance of
tribal leaders.

15 Cite as: 609 U. S. ____ (2026)
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LITO, J., dissenting
The exclusion of these “tribal Indians” from citizenship
followed from Article I’s Apportionment Clause, which says
that congressional “Representatives and direct Taxes shall
be apportioned among the several States . . . according to
their respective Numbers . . . excluding Indians not taxed.”
§2, cl. 3. In the Constitution, just as during the Revolution,
taxation and representation went hand in hand. Indians
who lived apart under tribal rule were not considered part
of the political community. As Chief Justice Marshall ex-
plained, Indian tribes were “domestic dependent nations.”
Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831). Chancellor
Kent provided a similar description of Indians’ status in the
early Republic: “Though born within our territorial limits,
the Indians are considered as born under the dominion of
their tribes. They are not our subjects, born within the pur-
view of the law, because they are not born in obedience to
us. They belong, by birth, to their own tribes.” Goodell v.
Jackson ex dem. Smith, 20 Johns. 693, 712 (N. Y. Ct. Corr.
Errors 1823) (emphasis deleted). Because Indians who
lived apart under tribal rule were not considered part of the
political community, they did not receive representation,
and they were not taxed. Due to this status, it appears to
have been accepted that tribal Indians and their children,
although born on U. S. soil, were not citizens.
The other exception—for the children of diplomats—was
one that had been recognized under the British rule and
was endorsed by leading authorities on the law of nations.
E. de Vattel, The Law of Nations §217, p. 103 (1797). This
was a minuscule category at best, and Congress could have
preserved the exception with narrow language applicable
only to the members of that group. For example, it could
have said something like this: “[A]ll persons born in the
United States and not subject to any foreign power, exclud-
ing Indians not taxed and the children of foreign diplo-
mats, are hereby declared to be citizens of the United
States.” Congress did not take that approach. It chose

16 TRUMP v. BARBARA
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LITO, J., dissenting
instead to identify what it understood to be the character-
istic that called for the exception and to deny birthright cit-
izenship to anyone who shares that characteristic. That
characteristic, as Congress saw it, was being “subject to any
foreign power.”
With this understanding of the CRA’s citizenship test in
mind, we may return to the text of the Fourteenth Amend-
ment. When Congress framed the citizenship test in the
Fourteenth Amendment, it consolidated the CRA’s two ex-
ceptions to citizenship by birth—for “Indians not taxed” and
those “subject to any foreign power.” The Fourteenth
Amendment used the phrase “subject to the jurisdiction” of
the United States to cover both of those exceptions. There-
fore, a person who is “subject to any foreign power” is not
“subject to the jurisdiction” of the United States within the
meaning of the Fourteenth Amendment. This unique for-
mulation uses the term “jurisdiction” in a very specific
sense. It refers to a form of jurisdiction that is exclusive,
that is not in any way limited by any power possessed by
any foreign country.
The children of diplomats were not subject to this com-
plete jurisdiction because they were citizens or subjects of
the countries represented by their fathers and thus bore du-
ties to those countries. Likewise, tribal Indians were not
subject to the United States’ exclusive jurisdiction because
they were bound to obey tribal law. But they were certainly
subject to the jurisdiction of the United States in a different
sense of the concept. That is, they were subject to regula-
tion by the Federal Government. After all, their tribes were
“domestic dependent nations,” Cherokee Nation, 5 Pet., at
17 (emphasis added), and even though the Government al-
lowed tribes a large measure of self-government, it consist-
ently asserted its jurisdiction to intervene.
In 1817, for example, federal criminal jurisdiction was ex-
tended to many crimes committed within the Indian coun-
try, Act of Mar. 3, 1817, ch. 92, 3 Stat. 383, and the Indian

17 Cite as: 609 U. S. ____ (2026)
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LITO, J., dissenting
Trade and Intercourse Act of 1834, §25, 4 Stat. 733, ex-
tended that jurisdiction. In addition, treaties repeatedly
described tribes as within the “jurisdiction” of the United
States. E.g., Treaty Between the United States and the
Navajo Tribe of Indians, Sept. 9, 1849, 9 Stat. 974 (ratified
Sept. 24, 1850); Treaty Between the United States and the
Utah Indians, Dec. 30, 1849, 9 Stat. 984 (ratified Sept. 9,
1850); Treaty Between the United States and the Apache
Nation of Indians, July 1, 1852, 10 Stat. 979 (ratified Mar.
23, 1853). Likewise, this Court held that Indians were
“within our jurisdiction and subject to our laws.” United
States v. Coxe, 18 How. 100, 104 (1856). Thus, tribal Indi-
ans were subject to the jurisdiction of the United States in
the sense that they could be and were governed by federal
law, but they were not subject exclusively to federal law be-
cause they were also governed by tribal law. For that rea-
son, their children did not become citizens at birth.
This understanding of the phrase “subject to the jurisdic-
tion thereof ” also explains why naturalized citizens must
foreswear all other allegiances when they become United
States citizens. From the earliest days of our Republic until
now, Congress has required naturalized citizens to “re-
nounce and abjure absolutely and entirely all allegiance
and fidelity to any foreign prince, potentate, state, or sover-
eignty of whom or which the applicant was before a subject
or citizen.” 8 U. S. C. §1448(a); see Act of Jan. 29, 1795, ch.
20, 1 Stat. 414 (“he doth absolutely and entirely renounce
and abjure all allegiance and fidelity to every foreign
prince, potentate, state or sovereignty . . . whereof he was
before a citizen or subject”). Such an oath would not be nec-
essary if the Constitution permitted anything less than ex-
clusive jurisdiction.
In sum, the Fourteenth Amendment confers citizenship
on a person who is born in this country or naturalized only
if that person is also “not subject to any foreign power.”

18 TRUMP v. BARBARA
A
LITO, J., dissenting
2
The Court interprets “subject to the jurisdiction thereof ”
differently. In its view, the phrase simply means subject to
the laws that apply to everyone who is present within the
country’s borders. See ante, at 10–11. That interpretation,
however, presents fatal problems.
First, it gives the Fourteenth Amendment’s citizenship
test a meaning that plainly differs from that in the Civil
Rights Act, even though it is beyond any reasonable dispute
that Congress did no such thing. Accord, ante, at 26–31,
63–64 (T
HOMAS, J., dissenting). To justify its departure
from the Civil Rights Act, the Court argues that the Act
“raises more questions than answers” and that the Four-
teenth Amendment “‘better’ expresses the views of the Re-
construction Congress.” Ante, at 24. But, as I see it, decid-
ing whether someone is “subject to any foreign power”
raises far fewer questions than deciding whether that per-
son is “subject to the jurisdiction” of the United States. The
Court’s commitment to avoiding the straightforward text of
the Civil Rights Act strongly suggests that something is
amiss.
Second, the Court cannot explain why the Fourteenth
Amendment did not confer citizenship on children born in
the United States to tribal Indians. As explained, federal
law governed those children and their parents to the extent
the Federal Government wished. If the Court were right
that the Citizenship Clause applies to anyone who is born
here and is subject to our laws, then the Fourteenth Amend-
ment would have conferred citizenship on all tribal Indians.
But the exception for tribal Indians was well-established at
the time and remained until Congress eliminated it by stat-
ute. See Indian Citizenship Act of 1924, ch. 233, 43 Stat.
253 (“That all non-citizen Indians born within the territo-
rial limits of the United States be, and they are hereby, de-
clared to be citizens of the United States”).

19 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
Third, the Court cannot explain why the phrase “subject
to the jurisdiction” of the United States applies to natural-
ized citizens. All naturalized citizens, like everyone else
who is present in this country, must obey the law, so if that
phrase meant what the Court thinks, it is superfluous. By
contrast, if it means not being “subject to any foreign
power,” it serves an identifiable purpose and explains why
the naturalization statutes, both before and after the adop-
tion of the Fourteenth Amendment, required those seeking
naturalization to renounce allegiance to any other country.
For these reasons, the Court’s interpretation of the Four-
teenth Amendment’s Citizenship Clause fails on textualist
grounds.
3
The Court does not confront these problems because it
pays little attention to the constitutional text. Instead of
performing its own textual analysis, the Court leans on
precedent that glosses the text. Ante, at 10–12. But none
of the cases it cites analyzed the text of the Fourteenth
Amendment’s Citizenship Clause.
The Court first cites Lynch, but as J
USTICE THOMAS com-
prehensively explains, any reliance on Lynch is misplaced.
Ante, at 78–81 (dissenting opinion).
Next, the Court turns to Schooner Exchange v. McFad-
don, 7 Cranch 116, 147 (1812), which held that a “ship of
war” of a “friendly power” could enter a United States port
without the risk of seizure. Neither that holding nor the
reasoning in Chief Justice Marshall’s opinion for the Court
has any bearing on the meaning of the terms of the Four-
teenth Amendment’s Citizenship Clause.
The question in Schooner Exchange concerned the cir-
cumstances under which a sovereign is deemed under the
law of nations to have implicitly waived part of its other-
wise complete sovereignty over its territory. The Four-
teenth Amendment, however, does not waive any part of the

20 TRUMP v. BARBARA
A
LITO, J., dissenting
United States’ sovereignty. It is true that the Government
has waived its sovereign right to subject covered diplomats
and their dependents to legal process, but that is done by a
statute, 22 U. S. C. §254a et seq., that implements treaty
obligations and respects long-established norms of interna-
tional law. Neither that statute, nor any treaty into which
the United States has entered, nor any international law
norm requires the United States to confer birthright citi-
zenship on any child born here to alien parents.
4
The interpretation of the Fourteenth Amendment’s Citi-
zenship Clause set out above is based entirely on the text
and legal context of that Amendment and the Civil Rights
Act of 1866. It does not depend in any way on the record of
the debates on those two enactments. But to the extent that
congressional debates on the Fourteenth Amendment and
the Civil Rights Act are probative, they strongly support my
textual interpretation.
The clearest evidence was provided when the Fourteenth
Amendment’s Citizenship Clause was presented in the Sen-
ate. As originally drafted, the Fourteenth Amendment did
not define citizenship. See Cong. Globe, 39th Cong., 1st
Sess., 2286. Senator Jacob Howard introduced an amend-
ment that remedied that problem. Id., at 2890. Senator
Lyman Trumbull, the author of the citizenship clause in the
Civil Rights Act, explained just what the new amendment
meant: “The provision is, that ‘all persons born in the
United States, and subject to the jurisdiction thereof, are
citizens.’ That means ‘subject to the complete jurisdiction
thereof.’ . . . What do we mean by ‘subject to the juris-
diction of the United States?’ Not owing allegiance to
anybody else. That is what it means.” Id., at 2893 (em-
phasis added). This language, he said, was “better than the
language in the civil rights bill,” but the “object to be ar-
rived at is the same.” Id., at 2894. Senator Howard

21 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
“concur[red] entirely” in Senator Trumbull’s interpretation.
Id., at 2895. Thus, the authors of the two major provisions
defining United States citizenship agreed that birthright
citizenship required complete allegiance.
Other senators quickly agreed. Senator Doolittle called
the Civil Rights Act the “forerunner of this constitutional
amendment” and said the “civil rights bill undertook to do
this same thing” as the Fourteenth Amendment. Id., at
2896. Senator Reverdy Johnson, a member of the Joint
Committee on Reconstruction and former Attorney Gen-
eral, pointed out that “all that this amendment provides is
that all persons born in the United States and not subject
to some foreign Power—for that, no doubt, is the meaning of
the committee who have brought the matter before us—
shall be considered as citizens of the United States.” Id., at
2893 (emphasis added). So too Senator Williams remarked
that he understood “the words here, ‘subject to the jurisdic-
tion of the United States,’ to mean fully and completely sub-
ject to the jurisdiction of the United States.” Id., at 2897.
6
Public commentary on the Citizenship Clause exhibited a
similar understanding. K. Lash, Prima Facie Citizenship,
101 Notre Dame. L. Rev. 101, 161 (forthcoming 2026).
Those who disagree with this interpretation have not
found any statement in which another Senator expressly
disputed Senator Howard’s and Senator Trumbull’s inter-
pretation of the amendment. They muster a collection of
statements that provide some support for their position, but
it is a mistake to attribute too much weight to extempora-
neous oral statements, which are often phrased in ways
that are not precise. And a single member’s interpretation
of a provision may not be shared by a majority.
I do not suggest that we should base our decision in this
case on statements made during the legislative debates on
——————
6
There was no substantive debate on the Citizenship Clause in the
House of Representatives.

22 TRUMP v. BARBARA
A
LITO, J., dissenting
the Fourteenth Amendment and the Civil Rights Act. Reli-
ance on any form of legislative history is always problem-
atic for reasons that are familiar. See A. Scalia, A Matter
of Interpretation 29–37 (1997). “[F]loor statements by indi-
vidual legislators rank among the least illuminating forms
of legislative history.” SW General, 580 U. S., at 307. Here,
the only form of legislative history we have consists of floor
statements.
We should base our decision on the firm ground provided
by the constitutional text, but if we look beyond the text,
the congressional debates and public commentary confirm
that the Citizenship Clause requires complete allegiance.
III
After the ratification of the Fourteenth Amendment, Su-
preme Court cases quickly acknowledged the interpretation
set out above. Accord, ante, at 36–38 (T
HOMAS, J., dissent-
ing). In the Slaughter-House Cases, 16 Wall. 36 (1873), the
Court wrote that the Amendment’s Citizenship Clause “was
intended to exclude from its operation children of . . . citi-
zens or subjects of foreign States born within the United
States.” Id., at 73 (emphasis added); see also Minor v. Hap-
persett, 21 Wall. 162, 167–168 (1875) (expressing “doubts”
about the citizenship of children who are born to non-citizen
parents). And in Elk v. Wilkins, 112 U. S. 94 (1884), Justice
Gray’s opinion for the Court held that the Citizenship
Clause requires “not merely” that a person born in the
United States be “subject in some respect or degree to the
jurisdiction of the United States,” but that he be “completely
subject to [the United States’] political jurisdiction” and owe
the country his “direct and immediate allegiance.” Id., at
102 (emphasis added). For that reason, John Elk, despite
being “born within the territorial limits of the United
States,” did not have a valid claim to citizenship by birth
because he had been born on a reservation to tribal Indians.
Ibid. Indian tribes, the opinion explained, “were alien

23 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
nations,” and their members “owed immediate allegiance to
the several tribes.” Id., at 99. Although Elk had “voluntar-
ily separat[ed] himself from his tribe and tak[en] up his res-
idence” among the general public, he was born “owing im-
mediate allegiance” to the tribe, and as a result, was not
entitled to birthright citizenship under the Fourteenth
Amendment. Id., at 99, 102.
That was the state of the Court’s case law until Wong Kim
Ark turned it in a different direction. That case provides
the strongest support for today’s decision, but its holding is
not controlling, and I would not allow the meaning of Amer-
ican citizenship to be forever dictated by the opinion’s dubi-
ous dicta. Wong Kim Ark cautioned against assigning too
much weight to dicta, 169 U. S., at 679, and it is appropriate
to apply that same advice to the opinion in Wong Kim Ark
itself.
The Court leans heavily on Wong Kim Ark, which cer-
tainly displayed the fruit of considerable research on a
range of subjects. But it showed little respect for precedent.
Justice Gray, the author of Elk, 112 U. S. 94, also wrote
Wong Kim Ark, but he brushed Elk aside on the flimsy
ground that it “concerned only members of the Indian
tribes” and thus had no bearing on other children. Wong
Kim Ark, 169 U. S., at 682.
Wong Kim Ark’s treatment of the text of the Fourteenth
Amendment and its relationship with the Civil Rights Act’s
citizenship test was no better. Indeed, in reading the opin-
ion, it is hard to escape the conclusion that it aimed to di-
vert as much attention as possible from what those provi-
sions actually say. The discussion of those provisions is
broken up and interspersed with disquisitions on other
matters.
When the opinion finally turns to the text of the Four-
teenth Amendment, it summarily concludes that “‘subject
to the jurisdiction thereof’ ” in the Citizenship Clause has
the same meaning as the phrase “‘within its jurisdiction’”

24 TRUMP v. BARBARA
A
LITO, J., dissenting
in the Equal Protection Clause.” Id., at 687. But the opin-
ion makes no effort to explain why Congress might have
chosen to use different language in two places within the
same provision to express the same concept. As we have
often noted, we usually presume that “‘differences in lan-
guage . . . convey differences in meaning.’” Ysleta del Sur
Pueblo v. Texas, 596 U. S. 685, 698 (2022); see, e.g., Pulsifer,
601 U. S., at 149; Saxon, 596 U. S., at 457–458. Nor does
the opinion explain why Elk had interpreted “subject to the
jurisdiction thereof ” very differently.
As for the phrase “not subject to any foreign power” in the
Civil Rights Act, Wong Kim Ark tries two different tacks.
First, it suggests that the phrase means the same thing as
“subject to the jurisdiction thereof ” in the Fourteenth
Amendment. See 169 U. S., at 675. But if, as the opinion
maintains, “subject to the jurisdiction thereof ” essentially
means subject to civil and criminal liability for breaking the
law, see id., at 685–687, then “subject to the jurisdiction
thereof ” does not mean the same thing as “not subject to
any foreign power.” Everyone within the country’s borders
(except those with diplomatic immunity) may be held civilly
or criminally liable for violations of the law. But many al-
iens within our territorial limits are also “subject to [a] for-
eign power,” i.e., their home country, because they must fol-
low that country’s laws when they are abroad. Some
countries—Mexico, for example—even mandate military
service by those living abroad.
7
So in ordinary usage, being
within the United States and having an obligation to obey
U. S. law while here is definitely not the same as not being
“subject to any foreign power.”
Wong Kim Ark’s fallback argument is no better than the
first. The opinion speculates that Congress might have
——————
7
Ley del Servicio Militar, Arts. 11, 26(b), 43 Diario Oficial de la Feder-
ación [DOF] 30–08–1940, Últimas reformas DOF 23–01–1998 (Mex.
1998).

25 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
thought that “not subject to any foreign power” trimmed the
birthright-citizenship rule too much and that this accounts
for Congress’s use of different language in the Fourteenth
Amendment. Id., at 688. That suggestion flies in the face
of all the reasons previously mentioned why the citizenship
tests in the Civil Rights Act and the Fourteenth Amend-
ment must be understood to be substantively identical.
That is the extent of Wong Kim Ark’s analysis of the
terms of the Fourteenth Amendment’s citizenship test, and
I would not carve an interpretation of the Citizenship
Clause in stone based on such dubious dicta.
And dicta it is. Sometimes it is not easy to determine the
exact contours of a decision’s holding, but the opinion in
Wong Kim Ark obviates that problem. At the end of the
opinion, the Court clearly spells out exactly what it held:
“[A] child born in the United States, of parents of Chi-
nese descent, who, at the time of his birth, are subjects
of the Emperor of China, but have a permanent dom-
icil and residence in the United States, and are
there carrying on business, and are not employed in
any diplomatic or official capacity under the Emperor
of China, becomes at the time of his birth a citizen of
the United States.” Id., at 705 (emphasis added).
Thus, the holding of the case was limited to a child born
in the United States to parents who were not citizens but
had established “a permanent domicil and residence” here.
Many other key passages in the opinion confirm this fact:
 “[W]hen the parents are domiciled here[,] birth estab-
lishes the right to citizenship,” id., at 692;
 The Citizenship Clause “includes the children born,
within the territory of the United States, of all other
persons, of whatever race or color, domiciled within the
United States,” id., at 693;

26 TRUMP v. BARBARA
A
LITO, J., dissenting
 “Every citizen or subject of another country, while dom-
iciled here, is within the allegiance and the protection,
and consequently subject to the jurisdiction, of the
United States,” ibid.;
 “[S]ubjects of the Emperor of China, but domiciled in
the United States, . . . must be held to be subject to the
jurisdiction of the United States,” id., at 696.
The Court dismisses these pointed and repeated refer-
ences to domicile, arguing that domicile was merely an in-
cidental fact and not an element of the holding. Ante, at
24–25. But Justice Gray had a good reason for pointing out
that Wong Kim Ark’s parents had established their domicile
here. A person’s domicile is the place where he or she in-
tends to live indefinitely. E.g., Ennis v. Smith, 14 How. 400,
422–423 (1853); Mitchell v. United States, 21 Wall. 350, 352
(1875). Therefore, the fact that they had established domi-
cile here meant that they wanted to make the United States
their home.
It is telling that Justice Gray’s statement of the holding
also mentioned that Wong Kim Ark and his parents were
Chinese. The British birthright-subjecthood rule did not
take account of the race or nationality of the alien to whom
a child was born within the King’s domain. See Calvin’s
Case, 7 Co. Rep., at 5b–6a, 77 Eng. Rep., at 383–384. So if
the opinion aimed to adopt the British rule (with the one
new exception for tribal Indians), there was no need what-
soever for the holding to say anything about the race of
Wong Kim Ark or his parents. Yet it did so. And not only
that, the opinion spent many paragraphs describing stat-
utes, court decisions, and debates in Congress about the
plight of Chinese immigrants. Wong Kim Ark, 169 U. S., at
694–704. The opinion also properly stressed that the fun-
damental objective of the Fourteenth Amendment was to
protect the rights of people of all races. Id., at 676, 692–
693.

27 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
When we understand the situation Wong Kim Ark and
his parents faced, their domicile in the United States takes
on a special meaning. If they had been white or black, they
could have applied for naturalization.
8
But because they
were Chinese, the law forbade their naturalization. Id., at
701. By establishing domicile, they had done everything
within their power to express their desire and intent to be-
come Americans. If the Court had not interpreted the Citi-
zenship Clause in the way set out in the holding, the result
would have been a population permanently caught in limbo.
The Chinese immigrants who were lawfully present before
the enactment of the Chinese Exclusion Act in 1882, as well
as all their descendants, could never become citizens no
matter how much they wanted to be Americans, no matter
how deep their roots in this country, and no matter how
substantial their contributions to our society.
Wong Kim Ark is therefore best understood as holding
that people who are lawfully present here, establish the
United States as their intended permanent home, and do
everything within their power to become United States cit-
izens can be seen as no longer subject to any foreign power.
9
Thus, their children are born citizens under the Fourteenth
Amendment. That interpretation of Wong Kim Ark is
——————
8
See Naturalization Act of 1870, ch. 254, §7, 16 Stat. 256 (extending
naturalization laws to people “of African nativity and to persons of Afri-
can descent”).
9
The majority accuses me of creating an ad hoc exception to the rule of
complete allegiance for those who have done everything in their power to
become United States citizens. Ante, at 24, and n. 6. But that is a sur-
prising line of attack for the majority. After all, this exception comes
from Wong Kim Ark—a decision the majority fully embraces. Wong Kim
Ark, in turn, had to recognize this exception to effectuate the Fourteenth
Amendment’s protections in the face of the discriminatory Chinese Ex-
clusion Act. Regardless, as far as exceptions are concerned, the Court
has more to explain than I do. The Court has not offered any satisfactory
explanation for how the feudal rule it champions coheres with the new,
distinctly American situations regarding Indians, slaves, and free
blacks.

28 TRUMP v. BARBARA
A
LITO, J., dissenting
consistent with the decision’s statement of its holding; it
can be reconciled with the language of the Fourteenth
Amendment and the Civil Rights Act; and for the Chinese
Americans of Wong Kim Ark’s time, it was the interpreta-
tion that best implemented the Fourteenth Amendment’s
promise of racial equality.
IV
Wong Kim Ark benefited Chinese Americans, but its im-
pact on other immigrants was limited. For decades after
that decision, immigration remained largely unregulated.
During World War I, however, the Federal Government be-
gan to limit the flow of immigrants. In 1917, Congress
passed a law that excluded all Asians, implemented a liter-
acy test, and included a long list of criteria for admission.
Ch. 29, 39 Stat. 874–878. Later laws, most notably the dis-
criminatory Immigration Act of 1924, continued this trend
by imposing quotas based on immigrants’ country of origin.
See ch. 190, 43 Stat. 153. From that time until the enact-
ment of the Immigration and Nationality Act of 1965, im-
migration, both legal and illegal, was light, and the number
of Americans born abroad shrank from 13.9 million in 1920
(when the population was just over 100 million) to less than
10 million in the 1960s (when the population grew to over
200 million).
10
After 1965, however, immigration increased
dramatically, and the problem of illegal immigration grew.
The story of illegal immigration unfolds in four parts.
First, illegal immigration emerged as a notable problem in
the 1970s. Second, the Federal Government tried to deal
with this problem in 1986 by implementing employer sanc-
tions and amnesty for millions of immigrants, but that at-
tempt failed. Third, the Federal Government—with help
——————
10
Dept. of Commerce, Bureau of Census, S. Azari, V. Jenkins, J. Hahn,
& L. Medina, The Foreign-Born Population in the United States: 2022, 2
(2024), https://www2.census.gov/library/publications/2024/demo/
acsbr-019.pdf (archived at https://perma.cc/FPE7-L546).

29 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
from this Court—blocked border States from implementing
their own solutions to a problem that hit them particularly
hard. Meanwhile, other States, counties, and cities desig-
nated themselves “sanctuary jurisdictions,” thus encourag-
ing illegal immigration. Finally, as a result of these devel-
opments, the number of illegal immigrants in this country
exploded.
A
Illegal immigration emerged as a national problem in the
1970s, after Congress passed the Immigration and Nation-
ality Act in 1965. That Act eliminated immigration quotas
based on national origin and replaced them with a prefer-
ence-based immigration system that included an overall
cap of 290,000 immigrant visas per year. 79 Stat. 911, 921.
But demand for visas vastly outstripped supply, thus en-
couraging migrants to subvert the legal process. B. Mon-
toya, Diplomatic History of US Immigration During the
20th Century 52–53 (2024).
Many immigrants entered or remained illegally for eco-
nomic reasons. In the United States, opportunities
abounded “to pick crops and do other 3D (dirty, dangerous,
and demeaning) jobs.” S. Martin, A Nation of Immigrants
212 (2d ed. 2021) (Martin). American employers were all
too willing to hire employees who would work for less than
the minimum wage and without the benefit of laws protect-
ing employee rights. Id., at 210–212. Yet even these poor
working conditions surpassed those in the home countries
of many immigrants. C. Bon Tempo & H. Diner, Immigra-
tion: An American History 281–283 (2022) (Bon Tempo).
This situation created a strong incentive for immigration—
both legal and illegal.
As a result, immigration, both legal and illegal, soared.
Demographers generally assumed that the size of the ille-
gal-immigrant population in 1960 was “negligible.” J. Rob-
inson, Estimating the Approximate Size of the Illegal Alien

30 TRUMP v. BARBARA
A
LITO, J., dissenting
Population in the United States by the Comparative Trend
Analysis of Age-Specific Death Rates, 17 Demography 159,
170 (1980). By the end of the 1970s, however, a conserva-
tive estimate of the number of illegal immigrants was 3 mil-
lion. Id., at 160.
B
Early efforts to solve the illegal-immigration problem
failed. In 1977, President Carter proposed an immigration
overhaul that floundered due to opposition from his own
party’s core constituencies, including labor unions, His-
panic groups, and environmentalists. Martin 215.
In 1986, more than 20 years after passage of its last major
immigration bill, Congress agreed to do something about il-
legal immigration. It passed the Immigration Reform and
Control Act of 1986 (IRCA). See 100 Stat. 3359. This Court,
in an opinion by Justice Stevens, described IRCA as a “ma-
jor statutory response to the vast tide of illegal immigration
that had produced a ‘shadow population’ of literally millions
of undocumented aliens in the United States.” McNary v.
Haitian Refugee Center, Inc., 498 U. S. 479, 481 (1991).
IRCA made it unlawful “to hire, or to recruit or refer for a
fee . . . an alien knowing the alien is an unauthorized alien.”
8 U. S. C. §1324a(a)(1). To implement this program, IRCA
required employers to review documents establishing iden-
tity (such as a driver’s license), employment authorization
(such as a Social Security card), or both (such as a U. S.
passport). §1324a(b); see also Kansas v. Garcia, 589 U. S.
191, 196 (2020) (describing IRCA employment-verification
system). IRCA also increased funding for border security
and immigration enforcement. See 100 Stat. 3381.
IRCA balanced harsher enforcement with a plan to legal-
ize the status of millions who were living in the United
States illegally. See 8 U. S. C. §§1160, 1255a. Immigrants
could obtain legal status in two ways. First, they could file
an application showing that they had resided in this

31 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
country continuously since before 1982, had been physically
present here since the date IRCA became law (November 6,
1986), and would be admissible if they were coming legally.
§1255a(a). Second, they could certify that they had resided
in the United States for at least a year, had worked in agri-
culture for at least 90 days, and were admissible. §1160(a).
Given the less stringent criteria for the latter legalization
pathway, it proved much more popular. The number of ap-
plications under the agricultural pathway “far exceeded es-
timates,” at least in part because of fraud. Martin 225–226.
Ultimately, almost 2.7 million illegal immigrants obtained
legal status under the two pathways. P. Orrenius & M. Za-
vodny, Do Amnesty Programs Reduce Undocumented Im-
migration? Evidence from IRCA, 40 Demography 437
(2003) (Orrenius).
Despite IRCA’s ambitious aims, it failed to curb illegal
immigration. The work-verification and employer-sanction
system did not eliminate the strong economic incentive for
illegal immigration. E. Cohen, Illegal 157 (2020). Immi-
grants easily forged, stole, or shared documents, like photo-
less driver’s licenses and Social Security cards, to provide
“verification” of identity and employment authorization to
their employers. Martin 266–267. And the law supplied
little reason for employers to smoke out these fraudulent
documents. On the contrary, “if an employer requested ad-
ditional documentation, he or she faced penalties imposed
to ensure that employers did not discriminate against
foreign-looking or -sounding workers.” Id., at 267. Under-
enforcement of IRCA rendered its employer sanctions
“nearly toothless.” Bon Tempo 306. IRCA’s increased bor-
der enforcement did not help either. Although IRCA may
have caused a short-term decrease in migration, the law
“failed to discourage undocumented immigration in the
long run.” Orrenius 448.
Congress has not passed comprehensive immigration leg-
islation since 1986, in large part because voices across the

32 TRUMP v. BARBARA
A
LITO, J., dissenting
political spectrum have criticized any attempts at serious
reform. For example, President George W. Bush’s immigra-
tion-reform proposal met with skepticism from conserva-
tives who argued that it amounted to amnesty for illegal
immigrants. Martin 293. Meanwhile, liberals and labor
unions criticized the plan for not going far enough to ad-
dress illegal immigrants’ plight. Id., at 293–294.
C
When Congress failed to solve the illegal-immigration
problem, States stepped in. California led the way in 1994
with Proposition 187. That law stated “[e]very law enforce-
ment agency in California shall fully cooperate with the
United States . . . regarding any person who is arrested if
he or she is suspected of being present in the United States
in violation of federal immigration laws.” §4. Proposition
187 also excluded illegal immigrants from public social ser-
vices, publicly funded healthcare services, and—most con-
troversially—public education from elementary school
through university. §§6–8. Although California voters
overwhelmingly approved Proposition 187, the measure
never went into effect. A Federal District Court enjoined
the law, and then a new Governor settled the lawsuit. See
League of United Latin American Citizens v. Wilson, 908
F. Supp. 755 (CD Cal. 1995); P. Gulasekaram & S. Karthick
Ramakrishnan, The New Immigration Federalism 51–53
(2015).
As illegal immigration continued to climb, States tried to
lessen its effects. For example, Arizona passed a law in
2007 that allowed courts to suspend or revoke business li-
censes for those who employed illegal immigrants. Cham-
ber of Commerce of United States of America v. Whiting, 563
U. S. 582, 591 (2011). The Chamber of Commerce sued, ar-
guing the law was preempted, but this Court disagreed. Id.,
at 587, 593.

33 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
Following that victory in this Court, States worked to
ameliorate the illegal-immigration problem. In 2008 alone,
13 States passed laws punishing employers for hiring un-
authorized workers. Martin 298. Arizona went further in
2010 with a law that punished illegal immigrants for work-
ing or failing to register. Arizona v. United States, 567 U. S.
387, 392–394 (2012). The law also gave law enforcement
the ability to arrest, based on probable cause, those sus-
pected of violating the immigration laws, and required ver-
ification of individuals’ immigration status during stops,
detentions, and arrests. Id., at 394. At the United States’
urging, the Court held that federal law largely preempted
Arizona’s efforts. Id., at 400–415; but see id., at 440–441
(A
LITO, J., concurring in part and dissenting in part) (argu-
ing that the Arizona law was largely consistent with federal
law).
The litigation between Arizona and the United States in-
augurated an era in which the Federal Government and
States resisted each other’s efforts to address illegal immi-
gration. Texas, in particular, repeatedly challenged federal
immigration policies that the State alleged increased illegal
immigration. But the State met with little success in this
Court. The trouble began when Texas unsuccessfully chal-
lenged the 2021 termination of an earlier administration’s
border-enforcement policies. Biden v. Texas, 597 U. S. 785,
801–807 (2022). The State also lost in this Court when it
tried to stop the Government’s de-prioritization of immigra-
tion enforcement against some criminal aliens. United
States v. Texas, 599 U. S. 670, 673–674 (2023). This Court
thus greenlighted a policy that prohibited immigration offi-
cials from making enforcement decisions based solely on
criminal convictions “no matter how serious.” Texas v.
United States, 40 F. 4th 205, 214 (CA5 2022) (per curiam).
For its part, the Federal Government sued to stop Texas
from implementing its own solutions to illegal immigration.
When illegal entrants overran Texas border towns, the

34 TRUMP v. BARBARA
A
LITO, J., dissenting
State erected barbed wire fencing, but Border Patrol offic-
ers cut or displaced the fencing. As the lower courts found
and a video confirms, the federal officers installed a climb-
ing rope on the Texas side of the river and made no effort to
turn back a stream of migrants who were wading across the
Rio Grande. Instead of processing the entrants, border of-
ficers simply told them to walk a mile or more without su-
pervision to the nearest immigration processing center.
11
Then, from the comfort of chambers more than 1,000 miles
from the southern border, this Court sided with the Federal
Government, allowing immigrants to pour into the State.
See Department of Homeland Security v. Texas, 601 U. S.
___ (2024). Likewise, the Government sought to stop Texas
from criminalizing illegal entry or reentry into the State.
See United States v. Texas, 601 U. S. ___ (2023). Although
the Court denied that application, the Federal Govern-
ment’s message was clear: Even in the midst of a crisis, self-
help is not an option. In short, the Executive Branch and
this Court left border States—the ones that bear the “brunt
of the country’s illegal immigration problem,” Arizona, 567
U. S., at 436 (Scalia, J., concurring in part and dissenting
in part)—practically defenseless against illegal immigra-
tion.
Meanwhile, other States, counties, and cities encouraged
illegal immigration by becoming sanctuary jurisdictions.
These jurisdictions prohibit their law-enforcement officers
from cooperating with federal immigration officials.
M. Delgado, Sanctuary Cities, Communities, and Organiza-
tions 106 (2018) (Delgado). They often refuse to share in-
formation with federal immigration officers or to honor the
Federal Government’s requests to briefly extend the deten-
tion of those suspected of being in the country illegally. L.
Collingwood & P. Gonzalez O’Brien, Sanctuary Cities 6–7
——————
11
Application to Vacate Injunction Pending Appeal in Department of
Homeland Security v. Texas, O. T. 2023, No. 23A607, p. 5a.

35 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
(2019) (Collingwood); see United States v. Texas, 599 U. S.,
at 715 (A
LITO, J., dissenting). Many also prohibit police of-
ficers from asking about immigration status. Collingwood
6. San Francisco passed some of the first such ordinances
in the 1980s. Martin 310. After 2008, the number of juris-
dictions with sanctuary policies increased significantly.
Ibid. According to a list published by the Department of
Justice, 11 States and the District of Columbia, 3 counties,
and 18 cities are sanctuary jurisdictions.
12
But the number
is likely significantly higher. See, e.g., Delgado 129–131
(listing over 150 sanctuary jurisdictions); J. Vaughan & B.
Griffith, Map: Sanctuary Cities, Counties, and States, Cen-
ter for Immigration Studies (Mar. 10, 2026),
https://cis.org/Map-Sanctuary-Cities-Counties-and-States
(archived at https://perma.cc/TM8N-HNSF) (listing over
200 sanctuary jurisdictions); Collingwood 167–168 (listing
54 sanctuary cities).
D
Congress’s failure to act, the Executive Branch’s enforce-
ment policies and frequent opposition to state solutions,
and some jurisdictions’ policies have resulted in a massive
increase in the number of illegal immigrants living in this
country. According to leading demographers at Pew Re-
search Center, the illegal-immigrant population grew by
more than 2 million between 2022 and 2023, bringing the
total number of illegal immigrants in this country to 14 mil-
lion. J. Passel & J. Krogstad, Pew Research Center, U. S.
Unauthorized Immigrant Population Reached a Record 14
Million in 2023, p. 4 (Aug. 21, 2025) (Passel). Demogra-
phers estimate that 9% of all births in the United States in
——————
12
Dept. of Justice, Office of Atty. Gen., U. S. Sanctuary Jurisdiction
List Following Executive Order 14287: Protecting American Communi-
ties from Illegal Aliens (Oct. 31, 2025), https://www.justice.gov/ag/us-
sanctuary-jurisdiction-list-following-executive-order-14287-protecting-
american-communities (archived at https://perma.cc/8YRU-F6UH).

36 TRUMP v. BARBARA
A
LITO, J., dissenting
2023 were to mothers who were in the country illegally or
on a temporary basis.
13
These numbers are striking, and after 2023 the trend ap-
pears to have intensified. Between July 2023 and March
2024, the overall foreign-born population of the United
States increased from 48.5 million to 51.6 million—“an un-
precedented increase of 3 million immigrants in nine
months. Much of this growth was driven by the admission
of unauthorized immigrants with temporary deportation
protections.” Passel 20.
***
As a result of the events of the past 50 years, the United
States now has a huge contingent of people who entered or
remained in this country illegally, as well as a large group
of people who were born here to such parents. The Court’s
interpretation of the Fourteenth Amendment makes all the
members of this latter group citizens. Many of those who
have grown up here now have a strong moral claim to be
allowed to remain, but that is a matter that the Fourteenth
Amendment, when properly interpreted, leaves to Con-
gress.
V
As shown in Part II, supra, a person who is born in the
United States is made a citizen by the Fourteenth Amend-
ment only if that person was also “subject to the jurisdic-
tion” of the United States. And that phrase means subject
to the jurisdiction of the United States alone and not “sub-
ject to any foreign power.”
——————
13
J. Passel & D. Fahmy, Pew Research Center, About 9% of U. S.
Births in 2023 Were to Unauthorized or Temporary Legal Immigrant
Mothers (Mar. 31, 2026), https://www.pewresearch.org/short-reads/
2026/03/31/about-9-of-us-births-in-2023-were-to-unauthorized-or-temporary-
legal-immigrant-mothers/ (archived at https://perma.cc/3SFR-4Q97).

37 Cite as: 609 U. S. ____ (2026)
ALITO, J., dissenting
A great many persons who are born here to illegal immi-
grant parents fail this test because at birth they are auto-
matically made nationals of their parents’ native country
and, as a result, incur duties to that country. This means
that they are “subject to a foreign power” and are thus not
“subject to the jurisdiction” of the United States within the
meaning of the Fourteenth Amendment.
This is illustrated by the laws of countries on the list of
those from which the greatest number of illegal immigrants
come.
14
Mexico is at the top of that list, and under Mexico’s
constitution, the child of a Mexican parent can become a
Mexican national at birth and acquires certain duties to the
government. See Political Constitution of the United Mex-
ican States, Arts. 30, 31 (1917). Among these are the obli-
gation to receive military training and to join the National
Guard. Art. 31.
Guatemala is second on the list, and its constitution also
confers Guatemalan nationality on a person born abroad to
a Guatemalan parent. Political Constitution of the Repub-
lic of Guatemala, Art. 144 (1993). All Guatemalan nation-
als owe certain duties to the government. Art. 135. At the
age of 18, a Guatemalan national automatically becomes a
Guatemalan citizen, Art. 147, and thereby acquires addi-
tional obligations, Art. 136.
El Salvador is also among the top five, and its constitu-
tion provides that “[c]hildren of a Salvadoran father or
mother, born in a foreign country,” are Salvadorans by
birth. Constitution of El Salvador, Art. 90 (2014). Upon
reaching the age of 18, these children incur an obligation to
——————
14
See Office of Homeland Security Statistics, U. S. Department of
Homeland Security, B. Baker & R. Warren, Estimates of the Unauthor-
ized Immigrant Population Residing in the United States: January
2018–January 2022, p. 15 (Apr. 2024), https://ohss.dhs.gov/sites/
default/files/2024-06/2024_0418_ohss_estimates-of-the-unauthorized-
immigrant-population-residing-in-the-united-states-january-2018%25E2%
2580%2593january-2022.pdf (archived at https://perma.cc/VB5R-PU2M).

38 TRUMP v. BARBARA
A
LITO, J., dissenting
serve in the military, Art. 215, as well as other duties, in-
cluding the duty “[t]o serve the State in conformity with the
law.” Art. 73. Many other countries among the top 10 have
similar laws. See, e.g., Constitution of Honduras, Arts. 23,
40 (2013); Constitution of the Philippines, Art. II, §4;
Art. IV, §1 (1987); Nationality Law of the People’s Republic
of China, Art. 5 (1980).
Respondents’ claim in this case is that Executive Order
No. 14160 is unconstitutional on its face. To prevail on this
facial claim, they must show that “no set of circumstances
exists under which the [Executive Order] would be valid.”
United States v. Salerno, 481 U. S. 739, 745 (1987). And
because the order is valid as applied to nationals from the
countries discussed above, the claim should fail. In all like-
lihood, the Executive Order is also constitutional as applied
to nationals from a great many other countries, but no such
showing is needed here.
Indeed, showing merely that the Executive Order is valid
as applied to a child born to a birth tourist would be enough
to defeat respondents’ facial claim. That is why the Court
goes out of its way to hold that even a child born to a mother
who is here for only a brief time is a citizen under the Four-
teenth Amendment. Ante, at 3–4, 19–20.
The Court’s interpretation is not only contrary to the orig-
inal meaning of the Fourteenth Amendment, it produces
grotesque results. While foreigners who wish to immigrate
lawfully must sometimes wait for many years, a child born
here to a birth tourist is automatically a citizen.
The Court’s interpretation also has national-security im-
plications. Accord, ante, at 56 (T
HOMAS, J., dissenting).
Suppose that a person’s only connection to this country is
that he was born here to a mother who was present just
long enough to give birth and then quickly returned to her
native country. Suppose that country is a strategic adver-
sary or enemy of the United States. Suppose the child never
visited the United States while growing up and was

39 Cite as: 609 U. S. ____ (2026)
A
LITO, J., dissenting
inculcated with hatred of this country. According to the
Court, that person is a citizen of the United States. He can
enter and leave the country as he pleases. He can travel
the world on a United States passport. Even if he plots to
harm this country, he cannot be deprived of his status as a
citizen, at least under current precedent. See Vance v. Ter-
razas, 444 U. S. 252, 259–260 (1980).
The Court’s interpretation saddles this country with an
ancient British rule that even the United Kingdom has
abandoned,
15
as have other countries whose legal systems
share the same pedigree.
16
The Court’s interpretation preserves a powerful incentive
to enter or remain in this country illegally. Immigrants
naturally prefer affluent countries where economic oppor-
tunities are available. Other than Canada, the United
States will be the only affluent nation where birth alone is
enough to establish citizenship.
17
If the Fourteenth Amendment required these results, the
country would have to live with them or amend the Consti-
tution. But the Fourteenth Amendment does not include
the rule the Court now imposes on the country. In my judg-
ment, the Court has made a mistake that will seriously af-
fect the country’s future.
For that reason, I respectfully dissent.
——————
15
British Nationality Act of 1981, ch. 61, pt. I, §1.
16
See Australian Citizenship Act of 2007, No. 20, 2007, pt. 2, div. 1,
§12; New Zealand Citizenship Act of 1977, Pub. Act 1977, No. 61, pt. 1, §6.
17
D. DeSilver, Pew Research Center, U. S.-Style Birthright Citizen-
ship Is Uncommon Around the World (Mar. 31, 2026), https://www.
pewresearch.org/short-reads/2026/03/31/us-style-birthright-citizenship-
is-uncommon-around-the-world/ (archived at https://perma.cc/4DHU-
X85D); International Monetary Fund, GDP Per Capita, Current Prices
(2026), https://www.imf.org/external/datamapper/NGDPDPC@WEO/
OEMDC/ADVEC/WEOWORLD/LUX (archived at https://perma.cc/
DU7F-7XYW).

_________________
_________________
1 Cite as: 609 U. S. ____ (2026)
G
ORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 25–365
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES,
ET AL., PETITIONERS v. BARBARA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 30, 2026]
JUSTICE GORSUCH, dissenting.
At the heart of today’s dispute lie two competing views of
the Fourteenth Amendment’s Citizenship Clause. On one
account, the Clause incorporated the English common law
rule of jus soli (literally, the “right of the soil”). That rule,
developed in feudal times, had more to do with being a sub-
ject than a citizen. It was based on the notion that a “man
owed personal service to the lord of the soil, the same as his
master owed it to the king; and it was born with the child
and only ended in the grave.” 2 Cong. Rec. 3282 (1874); see
also 1 W. Blackstone, Commentaries on the Laws of Eng-
land 369 (1768); ante, at 2–4 (majority opinion). On the
other account, the Clause adopted a distinctly American
settler’s view of citizenship. One that promises the full “dig-
nity and glory of American citizenship” to any child born in
this country to parents who have made this Nation their
permanent home, regardless of their race, religion, or na-
tional origin. Plessy v. Ferguson, 163 U. S. 537, 555 (1896)
(Harlan, J., dissenting); see also ante, at 1–3 (T
HOMAS, J.,
dissenting). To my eye, the latter understanding better ac-
cords with the Clause’s original public meaning and that
leads me to join J
USTICE THOMAS’s dissent.
I write only to emphasize a few points. First, the under-
standing J
USTICE THOMAS and I share of the Citizenship
Clause is consistent with this Court’s holding in United

2 TRUMP v. BARBARA
G
ORSUCH, J., dissenting
States v. Wong Kim Ark, 169 U. S. 649 (1898). That case
involved parents born in China who had made their home
in this country lawfully, even though they never became
naturalized citizens and statutes then in effect made that
impossible. See id., at 652, 701. The question the Court
faced was whether the parents’ child, born in this country,
was himself a citizen. The government argued that the
child was not a citizen because his parents were not. Id., at
666. This Court—rightly—rejected the government’s posi-
tion. Throughout history, many other nations have re-
stricted citizenship by birth to the children of citizens. See
ante, at 13, n. 1 (T
HOMAS, J., dissenting). But the American
settler’s view of citizenship reflected in the Citizenship
Clause is not so parsimonious. What matters isn’t whether
a child’s parents are citizens. What matters is whether they
(and, by law, their child at birth) have made this place their
home and are thus “domiciled within the United States.”
Wong Kim Ark, 169 U. S., at 693.
Second, respondents chose to pursue a facial challenge to
the executive order at issue in this case and secured below
a preliminary injunction barring every one of the order’s po-
tential applications. Under this Court’s precedents, we can
sustain that injunction only if “no set of circumstances ex-
ists” in which the order may be applied lawfully. United
States v. Salerno, 481 U. S. 739, 745 (1987). That is a de-
manding standard, and it is not met here. Among other
things, the executive order holds that children born to tem-
porary visitors in this country, whether here lawfully or un-
lawfully, are not citizens. And at least to that extent, the
order is consistent with the Citizenship Clause as J
USTICE
THOMAS and I read it. By definition, temporary visitors to
this country do not choose to make a permanent home here,
and their children thus cannot claim the privilege of citi-
zenship. Because the executive order is lawful at least to
this extent, respondents’ facial challenge must fail. See
ibid.; ante, at 56–57 (T
HOMAS, J., dissenting).

3 Cite as: 609 U. S. ____ (2026)
G
ORSUCH, J., dissenting
Finally, just because the executive order has some lawful
applications and can survive a facial challenge does not
mean it is lawful across the board and immune from nar-
rower legal challenges. Besides addressing temporary vis-
itors, the order also denies the benefits of citizenship to chil-
dren born in this country to parents who make their
permanent home here, but do so in defiance of federal im-
migration laws. The government insists that aspect of the
order can survive any possible legal challenge, too, because
individuals can secure domicile in this country only if they
do so in compliance with federal law. See ante, at 57–58,
n. 10 (T
HOMAS, J., dissenting).
About that, however, I harbor doubts. Perhaps Wong
Kim Ark does not squarely foreclose the government’s posi-
tion. After all, that case addressed a child born to parents
who lawfully resided in this country. Still, I wonder: Is a
child born here to parents who have long chosen to make
this Nation their permanent home not a citizen under the
Fourteenth Amendment solely because his parents’ pres-
ence violates statutory law? If those parents are not domi-
ciled here, then where are they domiciled? And if the an-
swer is nowhere, how can we reconcile that conclusion with
this Court’s longstanding recognition that every person is
domiciled somewhere? See Desmare v. United States, 93
U. S. 605, 610 (1877). Because the executive order is not
facially invalid, these questions may not be properly before
us. But their answers are 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.