JOHN YOO: Supreme Court showdown exposes shaky case against birthright citizenship

Supreme Court will hear challenges to Trump's executive order ending birthright citizenship, but the Constitution and 140 years of precedent support automatic citizenship.

John Yoo is Heller Professor of Law at the University of California, Berkeley; distinguished visiting scholar at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin; and a nonresident senior fellow at the American Enterprise Institute.

Congress did not draft the Fourteenth Amendment to change this practice, but to affirm it in the face of the most grievous travesty in American constitutional history: slavery. In Dred Scott v. Sandford (1857), Chief Justice Roger Taney concluded that slaves — even those born in the United States — could never become American citizens. According to Taney, the Founders believed that Black Americans could never become equal, even though the Constitution did not exclude them from citizenship nor prevent Congress or the states from protecting their rights.