On June 30, 2026, the Supreme Court struck down Donald Trump’s attempt to unilaterally amend the Constitution. The true significance of this decision lies outside the four corners of the Court’s opinion, and is to be found in the principal dissent and the arguments it attempts to deploy. Trump's executive order (EO) and subsequent defenses of that EO by right-wing lawyers, legal scholars, political elites, and Justices Thomas, Alito, Gorsuch, and Kavanaugh, mark a war on Reconstruction.
I. Citizenship in the Antebellum Era
The common law rule held that persons born in Britain were subjects of the King and therefore entitled to his protection. Because the King guaranteed protection to his subjects, they owed a reciprocal duty of allegiance, and with allegiance to the sovereign came citizenship. Despite what some right-wing legal scholars have argued, this presumption governed at the Founding. If you were born on American soil, you became a citizen of the United States, subject to very narrow exceptions.
Of course, states that recognized slavery did not grant citizenship to enslaved people. Rather, they were recognized as property, with no more legal rights than a rocking chair. The political debates that consumed America during the first half of the 19th century were inextricably intertwined with the issue of slavery. For example, in the debates over internal improvements—what we would call “infrastructure” today—slavery shaped the terms because federal funding of infrastructure might portend federal interference with slavery.
19th Century political elites understood that slavery could (and in hindsight, would) tear the United States apart. As the US acquired more territory, first with the Louisiana Purchase and then the Mexican Cession, the issue became even more profound. What would be the status of slavery, and therefore citizenship, in the territories? The Missouri Compromise of 1820, the Compromise of 1850, and the Kansas-Nebraska Act of 1854 sought to answer that crucial question to no avail. Adding to the tension were concerns about immigration and nativism spurred by developments internal to the US, such as slavery, but also external factors such as European migration.
It was in this context that the Supreme Court decided Dred Scott v. Sandford. Readers are likely familiar with the content of Dred Scott. Chief Justice Roger Taney, a Jacksonian Democrat with a long history of support for slavery, held that Black people were “a subordinate and inferior class of beings” who “had no rights which the white man was bound to respect.” As such, Taney continued, Black people whether enslaved or free were not and could never be citizens of the United States.