Cheer Up! The Birthright Citizenship Case Moves Us Toward Inevitable Victory
Kurt Schlichter
Calm down about today’s birthright citizenship case, Trump v. Barbara. We were always going to lose. That was expected by anyone who understands how the courts work; what wasn’t expected is that this ruling was such a huge step toward eventual victory. You don’t have to be happy, but you don’t have to freak out. We’re winning.
Here’s the deal. Let me give it to you from the perspective of a politically informed lawyer, because I understand a little about how courts think, having been raised in a house with a mother who was a judge and appearing in courts all the way up to the Ninth Circuit for 30 years. It’s important you understand all the context to see where we are really at. It’s also important that you keep your feelings in check and not freak out like an emotionally incontinent teenage girl who catches her mom reading her diary.
Let’s talk about the 14th Amendment, which establishes birthright citizenship in the view of the very narrow majority. That “very narrow” part is key. For about 150 years, the common legal understanding of the 14th Amendment has been that it provides that, with narrow exceptions (such as the children of ambassadors), anyone born in the United States is an American citizen. And the text of the amendment can be read to support that. Now, you don’t have to like that, and you don’t have to agree with that reading—like most of you, I think the stronger argument is the one against birthright citizenship for children of transients and illegal aliens—but whether you agree or disagree, it’s not so legally ridiculous as to be disconnected from reality. And it was the reality until new scholarship, developed over the last couple of decades, began to seriously challenge it.
Let’s understand how the courts work. They don’t like changing things. They revere precedent. It takes a lot to get a new understanding of the Constitution to become the mainstream interpretation. Look at the Second Amendment. For a century, it was understood to allow pretty much any regulation of guns, as long as the regulation was “reasonable,” which it always ended up being in the eyes of the courts. The Heller decision completely changed that, and that decision was based on new scholarship. That’s the same process as we’re going through with birthright citizenship. We’re challenging something that’s been established, and you need to understand that our constitutional system is designed to make that hard.
Yeah, we lost today—barely. And that “barely” part is the good news. This was a 5–4 decision on the constitutional issue. Obviously, the three liberals voted against it because they will always vote the way that they perceive helps leftism. If illegal alien kids were believed to be aspiring Republicans, they would’ve been on the other side. None of these legal arguments that I’m talking about apply to them; they are hacks, and they don’t vote on principle. Chief Justice Roberts and Justice Barrett do vote on principle; their vote was entirely predictable to anyone familiar with how the courts work. It’s just that their principle is wrong, reflecting the old and established view of the 14th Amendment that we are currently challenging with new scholarship. Lots of people are wrong, and it doesn’t make them the antichrist. Yes, I know all the arguments in favor of changing the understanding of birthright citizenship, and we don’t need to relitigate them here. Just understand that in any case, both sides believe in their arguments. What we need to do is make an effort to get folks nominated to SCOTUS who are more open to new challenges to old thinking because we are making a lot of new challenges to old thinking.
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https://townhall.com/columnists/kurtschlichter/2026/06/30/cheer-up-the-birthright-citizenship-case-moves-us-toward-inevitable-victory-n2678580
