The debate over birthright citizenship has pushed constitutional conservatives to ask whether only a new amendment can settle its meaning and curb the abuses that have followed from a loose reading of the 14th Amendment.
Jonathan Turley, a constitutional scholar, argues that the Supreme Court’s recent skepticism of the Trump administration’s arguments shows the judiciary may be ill-equipped to rewrite what the 14th Amendment says. Conservatives on the bench tend to resist expansive reinterpretations, and that resistance leaves the political branches and the public as the most realistic path to change. This piece walks through the legal reality, the practical abuses, and why an amendment is on the table.
Today, anyone born on U.S. soil is automatically a citizen under the common reading of the 14th Amendment, and that bright-line rule has real consequences for national security and immigration policy. Chinese companies have reportedly facilitated “birth tourism,” and illegal immigrants exploit the current interpretation to access benefits and residency pathways. Those practical problems have pushed Republican thinkers to press for a clear fix that lawmakers, not judges, control.
Turley put it plainly: “Of course, nothing is certain until this summer when the Court issues its opinion in Trump v. Barbara,” he wrote. “However, we need to consider the need for a 28th Amendment to reaffirm the meaning of citizenship.” That sentence captures where conservatives land: the Court may rule narrowly, but Congress and the states can do more. If the judiciary will not authoritatively reframe citizenship, a constitutional amendment is the only tool that can.
The conservative justices’ hesitancy is rooted in originalist method and institutional caution. They worry about overturning long-held understandings of constitutional text and about inserting the judiciary into what many see as political questions. Originalists point to the 14th Amendment’s historical purpose — notably to secure rights for formerly enslaved people — as a measure against broad new readings that reach contemporary policy goals.
Although President Trump has lashed out with personal attacks on the conservative justices as “disloyal” and “stupid,” they are doing what they are bound by oath to do: apply the law without political favor or interest. I expect most of the justices agree with the vast majority of countries — and the president — that birthright citizenship is a foolish and harmful policy. But they are not legislators; they are jurists tasked with constitutional interpretation.
That passage highlights a political tension: a president can demand outcomes, but justices are constrained by institutional duty and legal method. Turley notes that conservative jurists, when uncertain, tend to avoid sweeping rulings. In his words, this is often a “default case” where judges “run home” rather than expand doctrine.
“For conservatives, constitutional interpretations offer less leeway than their liberal colleagues or believers in the ‘living constitution,'” he added. “If you believe in continually updating the Constitution from the bench to meet contemporary demands, constitutional language is barely a speed bump on your path to the preferred outcome in any given case.” Those lines underline a clear philosophical split over where change should come from.
Turley also described classroom logic: “In my Supreme Court class, I call this a ‘default case’ in which justices tend to run home. When a record or the law is uncertain, conservative justices tend to avoid expansive, new interpretations. That was precisely what Trump said he wanted in nominees.
These justices are not being ‘disloyal’ to him, but rather loyal to what they view as the meaning of the Constitution.” That dual-paragraph quote preserves the scholar’s exact phrasing and helps explain why members of the Court may resist politically popular fixes.
If the Court will not supply the remedy Republicans want, Turley says voters can. “The final word actually rests with the public,” Turley wrote. “We can amend the Constitution to join most of the world in barring birthright citizenship. There is no more important question in a republic than the definition of citizenship.” Those sentences present a blunt political pathway: a constitutional amendment.
Article V sets the route: propose an amendment by a two-thirds vote in both chambers of Congress or by a convention called by two-thirds of state legislatures, and then ratify it with three-fourths of the states. That is intentionally hard, but it reflects the gravity of changing foundational rights. Any successful push will require persuasion across red and blue lines and a strategy to win over skeptical states and legislators.
Republicans must decide whether to treat this as a legal puzzle for the courts or a political project for voters and legislatures. The practical problem of birth tourism and exploitative incentives is real and resonates with the base. Turning that concern into a constitutional majority demands a disciplined campaign that explains both the harm and the fix in plain terms.
Passing an amendment would be a long, public fight, but it would also be decisive and final in a way litigation often is not. It would settle the meaning of citizenship for future generations rather than leave it subject to shifting judicial theory. For conservatives who prioritize rule-bound governance, that finality has a strong appeal.
The deadline for a Court decision in Trump v. Barbara will matter, but it cannot be the only lever for reform. If the Supreme Court side-steps the policy question, the political branches and the public will need to act. That is the reality Turley lays out: judges interpret; citizens ultimately decide.
