The theory that won't die
A Chinese Exclusion-era fiction, buried by the Supreme Court in 1898, has resurfaced 128 years later and came within one vote of winning this week in Barbara v. Trump.
For anyone who wishes we could impeach the four horsemen of the Fourteenth Amendment debacle (raises hand), we must put that response to rest: none of the Justices perjured themselves during confirmation testimony. By debacle, of course, I’m referring to the 6-3/5.5-3.5 split decision in Trump v. Barbara.
Confirmation hearings for these four justices focused on the precedent surrounding Roe v Wade, not birthright citizenship (which wasn’t even an issue at the time). No one actually lied in their confirmation testimony when they overruled Roe.
Justice Clarence Thomas (1991) simply refused to engage. He offered no opinion on Roe, insisting that he had an “open mind.” However, he called the idea that a case is settled just because it was decided “the antithesis of what courts are supposed to do.” Thus no acknowledgement of stare decisis (“to stand by things decided”).
Justice Samuel Alito (2006) affirmed stare decisis as “a fundamental part of our legal system.” Nevertheless, he pointedly declined to rank precedents by tier: no “super-precedent,” no “super-duper precedent,” just precedent. Thus, precedent is due no specific recognition.
Justice Neil Gorsuch (2017) called precedent “the anchor of law.” He specifically named Roe as something “a good judge will consider.” Consider, not endorse.
Justice Brett Kavanaugh (2018) called Roe “settled as a precedent... entitled to the respect under principles of stare decisis.” He tied that specifically to the Constitution, Article III. And yet even Kavanaugh did not elevate precedent to omnipotence.
To these four Supreme Court of the United States justices, stare decisis is simply something that should be given consideration. It is clear by testimony that it is not a thumb on their scales.
As far as honoring precedent specific to this case, that’s what the majority did. In so doing, they applied both English common law and Wong Kim Ark (1898). Remember, that case determined that a child born of Chinese parents living in San Francisco was, indeed, a U.S. citizen. The Court reached this decision despite the Naturalization Act of 1870, which meant Chinese immigrants could not become citizens, and the Chinese Exclusion Act of 1882, which implemented a 10-year moratorium on Chinese immigrants. It began:
Whereas in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof…
Chinese immigrants had no path to citizenship from 1870 to the repeal of the Chinese Exclusion Act in 1943. And yet the Court upheld the unambiguous text of the Fourteenth Amendment (1868) for their children:
That’s the test that the 1898 Court reviewed. Born here, subject to U.S. law. Full stop. Nobody in 1868 wrote ‘unless your parents were only visiting.’
The drip-drip-drip of fringe hypotheses.
No perjury doesn’t mean no problem as this week’s decision, far too close for comfort, makes clear. That outcome represents four decades of the unscrupulous drip-drip-drip of fringe hypotheses unsupported by the historical record.
Repeat a lie often and loudly enough and an illusory truth effect kicks in. Research is clear: repeated exposure to a claim increases perceived truthfulness regardless of its accuracy or the listener’s initial skepticism. The result? It shifts the Overton Window of public awareness and then, too often, sentiment follows.
Three of the justices, playing the Furies of the Fourteenth Amendment, were full of creative storytelling masquerading as the historical record when they wrote their constitutional dissents. They decided that the 128 years following Wong Kim Ark meant something 180 degrees from the record.
They dragged in the “domicile theory,” which asserts that a child’s parents must be “domiciled” in the United States, not merely present. Legal writers of the late nineteenth century built that theory for the U.S.-born children of a population Congress had already decided it would never naturalize: the Chinese.
Nevertheless, the 1898 SCOTUS rejected that theory. From the 2026 ruling:
As we have already explained, the [1898] Court exhaustively canvassed the text and history of the Citizenship Clause [the Fourteenth Amendment]. It traced an unbroken line from the English common 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.
However, the domicile theory did not die. It did what fringe political theories do best: wait and scheme. Peter Schuck and Rogers Smith dusted it off in 1985. John Eastman spent the better part of two decades sharpening it into something a lawyer could argue with a somewhat straight face.
By 2025, it wasn’t a theory anymore, it was White House policy writ large in an Executive Order. And three sitting justices were prepared to bless it. (Kavanaugh concurred in the judgment but dissented in the constitutional holding; his argument was that the correct path was not an Executive Order but a federal law used to revise a constitutional amendment.)
Moreover, Thomas also argues, without supporting historical text, that the Fourteenth Amendment was a race-conscious measure limited to freed slaves. The historical record does not support the Thomas argument. After all, former slaves and freed Black persons were equally stateless.
[T]he framers of the 14th Amendment debated, discussed, and were aware other politically disfavored groups would be swept in to the protections of birthright citizenship and they did it anyway. These included the children of Chinese immigrants and gypsies… US immigration controls do not transition fully to the federal level until 1888, a process that begins in 1875. At the time of the 14th Amendments’ ratification, state migration laws were still controlling…
Alito’s dissent comes far too close to the preface to the Chinese Exclusion Act. He insists his narrower reading — citizenship only for those who “owe allegiance solely to this country” — is the one that doesn’t degrade citizenship, implicitly accusing the majority’s broader reading of doing exactly that. He claims:
[T]he Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.
The word “allegiance” does not appear in the Fourteenth Amendment.
Just as with Roe v. Wade, a patient and extreme minority has invested decades in reversing constitutional rights without tackling the almost impossible: a constitutional amendment. With Barbara, unlike Roe, the damage is potentially catastrophic: there is no explicit right to privacy in the Constitution but there is an explicit statement that those who are born here, with a very narrow exception, are citizens. Although Native Americans were exempt in 1868, Congress fixed that injustice in 1924.
A much-needed path forward.
This week’s near miss — a single vote or heart attack away from a different outcome — cannot be prevented by the vetting process that is Senate oversight, as Roe (above) so clearly illustrates. If confirmation hearings can’t screen for the kind of result-driven reading of the historical record that we see in Barbara — the very accusation ‘activist judges’ was coined to describe — then our only remaining leverage is structural.
So how might Congress depoliticize the Court, should the Democrats ever take control (since Republicans are perfectly happy with the current composition of the court, thank you, Sen. Mitch McConnell*)?
There is a proposal that should be harder to demagogue than expanding the size of the court, although Congress has already fiddled with the size of the Court seven, no eight, times.
That proposal would be creating staggered terms plus 18-year limits which also constrains the number of nominees any president could make. Would it surprise you to learn that no other major democracy provides lifetime terms for its constitutional courts?
The Brennan Center points out that the time SCOTUS justices spend in office has become almost unimaginably long. For the first 180 years of its history, justices served only about 15 years, it reports.
“Justices today sit on the bench for more than a decade longer than their predecessors did as recently as the 1960s. Several justices now on the Court are likely to hold office over as many as nine presidential terms [36 years],” the Center noted in 2023, given their young age at appointment and our increasing life spans.
Term limits for justices are overwhelmingly endorsed by the people of the United States, according to several polls. Conservative and progressive academics also endorse 18-year term limits. And there’s already a bill in the House with 79 cosponsors: the TERM Act.
The Constitution is vague about the details of the makeup of the Supreme Court and grants Congress “wide latitude” to determine its structure.
Congress can and must reform the Court.
*In March 2016, Senate Majority Leader McConnell refused to consider President Barack Obama’s nomination of Merrick Garland to the Court. His rationale? Eight months was too close to the presidential election. But more than four years later, McConnell rushed an October vote for Amy Coney Barrett, even though early voting in the 2020 presidential election had already begun. This proposal would bracket when Justices must be selected and confirmed.
That’s a fascinating analysis. Thank you!