In 2022, the Supreme Court‘s conservative majority held in Dobbs v. Jackson Women’s Health Organization that the meaning of the 14th Amendment is framed by the law in 1868, when the amendment was ratified.
But on June 30, in Trump v. Barbara — the ruling that narrowly affirmed birthright citizenship — two conservative justices took notably different views about the 14th Amendment and its relationship to other laws of the time. Those contrasts show the subjectivity that surrounds the allegedly objective concept of “originalism” in constitutional interpretation.
In Dobbs, Justice Samuel Alito’s majority opinion asked whether the right to abortion is “deeply rooted in this Nation’s history and tradition” and is “implicit in the concept of ordered liberty.” He answered that question by studying state abortion statutes as of 1868, noting that “by the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy.”
The dissent authored by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan pointed out that women did not vote or serve in political office in 1868, because the ratifiers of both the original Constitution and the 14th Amendment “did not understand women as full members of the community embraced by the phrase ‘We the People.’” It thus criticized the majority for determining what the amendment means for women by citing laws that women did not draft or even influence, and that were drafted without any awareness of 20th-century knowledge about women’s health.
The Court’s opinion in Trump v. Barbara, written by Chief Justice John Roberts, also focused on history. The 14th Amendment says that a child born in the United States and “subject to the jurisdiction thereof” is a citizen. The 6-3 majority reaffirmed the Court’s 1898 decision in United States v. Wong Kim Ark that read this phrase as creating only four narrow exceptions to the birthright citizenship rule for groups such as children of foreign diplomats.
Justice Brett Kavanaugh, who joined the Dobbs majority in 2022, disagreed with treating the four-group list as exclusive in a dissenting opinion. “The original constitutional principles do not change absent a constitutional amendment,” he wrote, noting that constitutional rules and exceptions must be applied “not only to circumstances as they existed in 1787, 1791, and 1868” but also to “modern situations that were unknown or unanticipated by the Constitution’s Framers.”
He specifically noted “significant illegal immigration into the United States” and “temporary visitors who give birth in the United States,” observing that cheap travel, modern immigration law and mass migration made today’s world materially different from 1868.
Alito also dissented in Barbara, criticizing “birth tourists” who come to the United States “solely for the purpose of giving birth to a child and then promptly return home.”
His argument about the 14th Amendment differed from Kavanaugh’s, focusing on the concept of “allegiance” as it was understood in 1868. While that argument is history-focused, Alito did not identify any connection between “birth tourism” and any law, statement or opinion of anyone who participated in drafting or ratifying the amendment.
Both Dobbs and Barbara involve the same amendment, ratified by the same actors. But in Barbara, Kavanaugh was willing to consider evidence about modern air travel when interpreting that amendment. In Dobbs, he was not willing to consider modern knowledge about women’s health.
For his part, Alito’s Barbara dissent was motivated by concerns about “birth tourism”— certainly an unknown phrase in 1868 — even though he was unwilling to consider issues about women’s rights that were not considered by the amendment’s drafters.
The explanation for these discrepancies is obvious. In Dobbs, taking account of what 1868 failed to consider would have pointed the justices to upholding abortion rights, a heretical stance in modern conservatism. In Barbara, taking account of what 1868 did not consider would have limited birthright citizenship, supporting another key part of the conservative platform.
Alito and Kavanaugh professed allegiance to originalism in both cases. But their application of that concept was clearly influenced by the end result — showing that “originalism” is not as objective an approach to constitutional meaning as the right so often claims.
