Among the barrage of edicts issued by Trump in the early days of his second term was Executive Order 14160, “Protecting the Meaning and Value of American Citizenship,” which seeks to redefine the citizenship clause in the Fourteenth Amendment by revoking birthright citizenship for the children of all undocumented, and some authorized, immigrants. Judge John Coughenour, the Reagan appointee who first stayed the order, called it “blatantly unconstitutional.” So far, every judge who has considered a challenge has agreed. As of this writing, it remains blocked across the nation.

In mid-May, the Supreme Court heard oral arguments regarding the order, but only concerning a technical issue: the Justice Department has asked it to limit lower courts’ use of nationwide injunctions. If enough justices side with the DOJ, the order could go into effect in Trump-friendly jurisdictions while legal challenges to its constitutionality proceed, meaning state lines could determine a child’s citizenship. 

In 2022, in an essay for this magazine, I suggested that “a paranoiac mindset is appropriate” regarding the stability of American citizenship, even for those whose parents, like mine, were born citizens. The Trump administration’s large-scale removal efforts, incarceration of migrants, and use of deportation as threat or punishment for activists are not new in the United States. What is new — the escalation to blatantly illegal deportations, as with the men taken to a prison in El Salvador in defiance of a judge’s order, and the attempt to alter more than a century of legal precedent regarding birthright citizenship — is only possible because of a preexisting level of brutality and opacity, as well as the prevailing apathy of non-immigrants. Such indifference may be the result of failing to grasp that we are all part of a changing and changeable immigration system that determines which “privileges and immunities,” in the language of the Constitution, any of us possess, whether undocumented or citizen. More empathy would help; so would a sense of self-preservation.   

When the Fourteenth Amendment was crafted in 1866, America must have seemed even more internally conflicted than it does in 2025. Nearly a million people had died during the Civil War. The president had been assassinated. The former Confederate states were not yet readmitted to the United States. Four million black people, once considered property, were now legal persons, but with what rights? The Southern states had reacted to emancipation with legislative and physical cruelty largely tolerated by the new president, Andrew Johnson: the flurry of laws known as the “Black Codes” reinstated as much oppression as possible without technically resurrecting slavery, while gruesome terrorism against black people and white Unionists aimed to instill a culture of fear among the enemies of the planter class. After winning large majorities in the 1866 congressional elections, however, radicals in Lincoln’s Republican Party overrode Johnson’s timidity and placed the subdued rebel states under military rule. 

In order to reenter the Union, the Southern states needed to submit to a set of new laws that, taken together, effectively nullified the Black Codes. One of these laws was the Fourteenth Amendment; its ratification was a precondition for readmission. The amendment made a sweeping avowal of equality as the nation’s connective tissue: 

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In two sentences, the amendment severed race and national origin from citizenship and its attendant rights. (The citizenship clause did not apply to Native Americans, whose nations were treated as distinct sovereignties; in 1924, legislation granted Native people citizenship, though they did not uniformly have the right to vote until 1965.) Emerging from abolitionist commitments, these sentences propose a country that rejects the inheritance of inequality. Just a few years earlier, divorcing legal entitlements from racial categorization would have been unimaginable: Representative James G. Blaine later wrote that before the war this transformation could only have been conjured up by “the wildest fancy of a distempered brain.” That this fancy became a reality still seems, considering the bloodbath that preceded it, quasi-magical, and even today, some historians regard the amendment with a respect verging on religious ardor. In 2015, the historian David Blight argued that its first sentence “ought to be embraced as a holy writ that binds our national community.” 

That sentence, Sen. Jacob Howard noted in 1866, had been added to “settle the great question of citizenship” — whether some persons could be excluded from it on racial grounds. Codifying an answer in the Constitution, he said, would put this question “beyond the legislative power, beyond the reach of [those] who would pull the whole system up by the roots and destroy it.” Here it is hard not to picture Donald Trump and his cronies, arms out, hands grasping. 

Fittingly, the Trump administration’s attempt to reopen the “great question” has zeroed in on that same sentence. Trump and his accomplices contend that “those subject to the jurisdiction thereof” excludes children of undocumented immigrants, as well as newcomers whose presence is lawful but temporary (i.e., people who do not intend to make this country their permanent home). This argument relies on changing the usual historical interpretation of what it means to be subject to a “jurisdiction” — from those who fall under the state’s regulatory power to those who swear total political allegiance. Trump’s team also asserts that the 1866 Congress did not intend for the citizenship clause to apply to undocumented immigrants, because no such category existed then. (In fact, as Congress was well aware at the time, there were people living in the U.S. in contravention of existing regulations.) Amanda Frost, an expert on citizenship law, recently summarized the Trump administration’s arguments as “made up out of whole cloth.”

The Fourteenth Amendment’s apparently straightforward wording has proven susceptible to extraordinarily tendentious interpretation in the past, however. In 1898, after the Spanish-American War, the United States acquired a number of territories previously claimed by Spain, including Puerto Rico and the Philippines. At the time, the Fourteenth Amendment was widely understood to ensure citizenship for residents of those territories, if not immediately, then eventually. This prospect made the acquisitions controversial — so much so that, in the words of Representative Frederic Coudert, “the election of 1900 largely turned upon the so-called issue of Imperialism.” Today, when anti-racism and anti-imperialism seem inextricable, it may be surprising to learn that the anti-imperialist rationale in this case was often racist: if every subject became a citizen, it would mean admitting a large group of non-white people as voters. (Similar concerns were raised about Hawaii and New Mexico.) Puerto Rico, with its mixed population, was judged more acceptable than the Philippines, whose inhabitants were deemed, in the words of Senator Carl Schurz, “utterly alien.” 

In the first third of the twentieth century, through the so-called “Insular Cases,” the Supreme Court incrementally addressed the problem posed by the seemingly undeniable claim of people in these new territorial possessions to the rights enjoyed in the United States. These legal decisions slowly built a doctrine of “territorial nonincorporation,” creating the category in which Puerto Rico and other U.S. possessions exist today: “foreign…in a domestic sense,” to use the famous phrase from Justice Edward Douglass White. That is, a place subject to the jurisdiction of the United States, populated by U.S. citizens who nonetheless do not have the full rights ordinarily entailed by that status while they reside there. What looks like a transparent violation of the Fourteenth Amendment has been thoroughly normalized. 

In moments when American political authorities have moved to impose a racial hierarchy on the protections of citizenship, like the turn-of-the-century expansion of the United States’s overseas empire, the Fourteenth Amendment has interfered with their designs. In an 1898 case, United States v. Wong Kim Ark, the Supreme Court affirmed the birthright citizenship of the child of Chinese immigrants, even though, due to the Chinese Exclusion Act of 1888, the parents could not naturalize. But as with the Fifteenth Amendment and its protections for voting rights, enemies of racial equality have exploited its every omission and minor ambiguity. The infamous logic of “separate but equal” codified by the Supreme Court in Plessy v. Ferguson (1893) allowed the Fourteenth Amendment’s equal protection guarantee to coexist with nearly a century of Jim Crow rule in the South. Generations of such creative misreading produced a citizenship whose protections have, in fact, profoundly differed by race. 

The Trump regime seems to hope that technicalities and loopholes will let it get away with running roughshod over the spirit of the amendment. If the Court does tackle birthright citizenship on its merits, it is difficult to imagine that it will uphold flagrant textual revision by executive fiat, given the precedent set by Wong Kim Ark, as well as the lower courts’ dramatic and universal rejection of the administration’s logic. Although most of the May oral arguments skirted the question at the heart of the case, Justices Kagan and Sotomayor disparaged and problematized the administration’s reasoning. Even (or especially) the originalists would be hard-pressed to find a way to make a cogent argument for the DOJ’s interpretation. 

But the justices’ views about the Fourteenth Amendment may not matter: so far, the administration appears reluctant to appeal the merits of the case to the Supreme Court, perhaps hoping to leave citizenship as a contested, patchwork right. This development could be only one phase in a gradual metamorphosis. Perhaps Trump’s lawyers expect to lose in the lower courts but hope, by leaning on arguments from the racist fringes of American jurisprudence, to shift those claims to the center. Trump has countless times demonstrated his belief that publicity beats truth, and he may have already accomplished a transformation of perception: birthright citizenship has become, again, a “great question” unsettled in the minds of Americans. It does not always take an obviously radical revision, like the Fourteenth Amendment — or Trump’s executive order — to generate new realities.