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Supreme Court's Birthright Citizenship Ruling: Legal Analysis with Theo Wold
At 56:50 · chapter starts 54:55
Theo Wold, who worked on the Trump administration's birthright citizenship executive order, joins Michael Knowles and Ben Domenech to break down what went wrong at the Supreme Court. He explains that both Kavanaugh and Amy Coney Barrett signaled skepticism at oral argument, and that Roberts' majority opinion is essentially an 'armchair historian's view' of the 14th Amendment rooted in Anglo common law — specifically the concept of subjecthood, not citizenship. [1] — Theo Wold "Chief Justice Roberts anchored his birthright citizenship ruling in 15th-century Anglo common law — and Theo Wold argues he missed everythi…" 56:10 Alito and Thomas both dissented correctly, Wold argues, noting that Roberts missed everything from the Declaration of Independence forward. The natural rights theorist Hadley Arkes pinpoints the flaw: Roberts defines citizenship as 'the right to have rights,' which would have struck the Framers as bizarre. Knowles adds the decisive historical counter: the United Kingdom — the very legal tradition Roberts invokes — abolished birthright citizenship in 1981, effective 1983, precisely because of mass migration. So if you're going to cite English common law, you should at least look at what the English actually did with it. [2] — Theo Wold "The executive order approach was always a gamble — and the Supreme Court called the bluff. Theo Wold explains that because the Court issued…" 1:06:00 Wold explains that the executive order approach, while legally interesting, failed to generate the political and legislative momentum needed and that most congressional remedies are now foreclosed by the constitutional ruling — meaning a fix will require a constitutional amendment. Ben Domenech, a longtime supporter of birthright citizenship who now has reservations given the scale of the Biden-era border crisis, says Roberts' opinion is 'crap' but that most Americans will simply shrug at the outcome.
Chief Justice Roberts anchored his birthright citizenship ruling in 15th-century Anglo common law — and Theo Wold argues he missed everything from the Declaration of Independence forward. The real kicker: Britain itself abolished birthright citizenship in 1981, making Roberts' appeal to English tradition incoherent.
Michael Knowles highlighted that the UK voted to end birthright citizenship in 1981, effective 1983, directly in response to mass migration pressures — a parallel the US Supreme Court ignored.
The Supreme Court ruled 5-4 upholding birthright citizenship, with Kavanaugh refusing to join Thomas and Alito on the substantive constitutional point.
The executive order approach was always a gamble — and the Supreme Court called the bluff. Theo Wold explains that because the Court issued a constitutional ruling rather than a statutory one, most congressional options are now foreclosed. Fixing birthright citizenship will require a constitutional amendment.
