American Identity After Birthright Citizenship
Beyond Trump v. Barbara
After 250 years, America’s highest institutions cannot define what it means to be an American. Last week, the Supreme Court struck down President Trump’s executive order limiting birthright citizenship, holding that the Constitution grants citizenship to all children born on American soil. The backlash was swift and severe, with conservatives calling the decision the next Roe v. Wade. Much like Roe, the uniting principle against the case is not the legal reasoning, but the deeper proposition it stands for. The title “American” holds a particular meaning, one that has historically had more limitations than mere birth.
Barbara crystallizes America’s identity crisis. Vice President JD Vance summarized this crisis well in his speech last year before the Claremont Institute: “If you ask yourself in 2025 what an American is, I hate to say it, very few of our leaders actually have a good answer.” Everyone can agree, however, that the definition of American is closely tied to citizenship. As I laid out in an article in the New Guard Press last year, citizenship in a republic has classical roots and, in the American tradition, does not boil down to jus soli – citizenship by soil. Dating back to ancient times, Aristotle taught that “a citizen is not a citizen because he lives in a certain place,” but by exercising the supreme power of self-governance. Rome, a better example for our Republic than ancient Greece, followed an even stricter system. Roman citizenship was not automatic by birth but was earned through military service, formal manumission, or deliberate extension by the Senate, because even thousands of years ago the Romans understood that membership in the polity required active contribution and assimilation. Birthright citizenship came along centuries later in monarchical Britain, yet the majority opinion in Barbara begins there, implying the common law has no deeper roots than the British monarchy. As Justice Alito lays out in his dissent in Barbara, that choice was misguided for an obvious reason: “There was no such thing as a ‘citizen’ of England, Scotland, or Ireland. The inhabitants of the British Isles were the King’s ‘subjects.’”
Safe to say, the Founders agreed with Justice Alito. Influenced by John Locke’s insistence that no earthly power binds a naturally free man without his consent, they built a republic on voluntary allegiance. Hamilton wrote in Federalist 22 that the “fabric of the American empire ought to rest on the solid basis of the consent of the people.” In his Letters from an American Farmer, J. Hector St. John de Crèvecœur captured the resulting American identity succinctly: To become an American the European must change their position “from a servant to the rank of a master; from being the slave of some despotic prince to become a free man.” This transformation from the old English customs to those of the individual colonies built a group of persons – a people – in early America, each person “an American, that new man.” From the Founders’ perspective, the words “We the People” was not a universalist language promising all people in America rights and privileges, but an acknowledgment of a pre-existing people transitioning into a new form of government. It was this people that John Jay described in Federalist 2 as one united people “speaking the same language, professing the same religion, attached to the same principles of government, [and] very similar in their manners and customs.”
Instead of this vision, the Court held that American citizenship requires only birth within the country’s borders. “Citizenship,” the Court declared, “was the right to have rights — to freely participate in our political community. Justice Jackson, quoting Radical Republican John Bingham, wrote that “the ‘rights of citizenship’ are universal because they are the ‘sacred rights of person[hood].’” If not for the text of the Constitution imposing the requirement of birth, this logic would take the law dangerously close to conferring automatic citizenship to everyone in fear of violating their “sacred rights of personhood.” Leaving aside the question of whether the Court’s interpretation of British common law misses the mark; any reader should approach the flowery language of “universal” rights with skepticism.
Simply reading the words of the Constitution and interpreting their original meaning – a task Justice Thomas undertakes in his 91-page dissent – is what the Court would have the public believe it did. In fact, it “pays little attention to the constitutional text,” as Justice Alito observes. If eternal, “sacred” principles are to guide the Court in this case or a future one, they should be the principles that built the Constitution, not the common law of a country we revolted against 250 years ago.
A nation, like an individual, needs a coherent identity. From the beginning, the identity of the American – that “new man”– was well-defined. While debate may be held over the Court’s legal reasoning in Barbara, the ideas it endorses are indisputably dangerous and wholly antithetical to our nation’s founding principles. Strong public policy decisions will offset the worst of the case’s consequences, but to counter it fully requires understanding that citizenship is not “the right to have rights,” but the duty to protect them. If the outrage over the Court’s decision teaches us anything, let it be the value of American identity.
Ethan Savka is a student at Hillsdale College and the founder of Emergency Docket. You can find him at @eesavka online.