The United States is at a tipping point, as the anti-truth movement attempts to erase the history of pivotal moments that advanced racial justice. Related to this movement, the legal theory of originalism falls short of a truthful retelling of history and therefore threatens America’s cultural memory. This episode of Justice Above All unpacks originalism and how it has helped fuel recent efforts to dismantle birthright citizenship, which is guaranteed under the Fourteenth Amendment and is a cornerstone of U.S. democracy. Episode guests also discuss progressive originalism, a theory that can help bring the nation closer to a truthful account of history and democratic renewal.
Director, Thurgood Marshall Institute
Senior Counsel, Legal Defense Fund
Senior Writer, Slate, and Co-Host, Amicus podcast
Originalism is a legal theory that interprets a law based on how it was originally understood at the time it was adopted. In the case of constitutional law, originalism looks to how the authors of the U.S. Constitution and its amendments intended the law to function. Originalism risks freezing in place the prejudices of those who ratified constitutional provisions centuries ago, at a time when most Black people were enslaved and full citizenship was limited to white men. In contrast, the emerging legal theory of progressive, or living, originalism sees the law as dynamic and not fixed to the time of adoption.
To properly interpret the Fourteenth Amendment and birthright citizenship, one must look at a truthful account of history. Birthright citizenship stems from the principle of jus soli: the idea that all children born in the United States are U.S. citizens. Birthright citizenship was enshrined in the U.S. Constitution in 1868, when the states ratified the Fourteenth Amendment, and has remained a bedrock of the nation. The Fourteenth Amendment was designed to repudiate the U.S. Supreme Court’s infamous Dred Scott decision, which denied Black people the protections of U.S. citizenship. In 1898, the U.S. Supreme Court confirmed in the case United States v. Wong Kim Ark that children born in the United States to immigrant parents were entitled to U.S. citizenship.
On January 20, 2025, inauguration day, President Donald Trump signed Executive Order 14160, which attempts to end birthright citizenship for certain immigrants’ children who were born in the United States after February 19, 2025. Specifically, it says the federal government will no longer consider U.S.-born children to be citizens if neither parent has citizenship or permanent immigration status. As a result of nationwide preliminary injunctions, the order is not currently in effect. However, as written, it applies to any child born in the United States after February 19, 2025, whose parents do not have citizenship or permanent immigration status.
In response, the Legal Defense Fund (LDF) joined other legal organizations in filing New Hampshire Indonesian Community Support v. Donald J. Trump. The lawsuit argues that the executive order seeks to enshrine a tiered system of personhood by denying citizenship to certain children born in the United States. Shortly after LDF’s filing, two historians and professors of legal history filed an amicus brief in which they presented the full history of the Fourteenth Amendment. Together, these legal documents are clear: the Fourteenth Amendment guarantees birthright citizenship, and claims stating otherwise are not an accurate account of history.
