Chatbots agree on birthright citizenship

On June 30, the U.S. Supreme Court narrowly affirmed the plain meaning (i.e., what the words say) of the 14th Amendment with respect to birthright citizenship. I've been reading the concurring and dissenting opinions by the justices, here. One expert historian I heard considers Justice Ketanji Brown Jackson's concurrence to be particularly strong.

The decision has caused considerable outrage on the ideological right, which is surprising and amusing considering it affirms not just the plain language of the 14th Amendment, but also law, practice, and previous Supreme Court precedent going back over 150 years.

In other words, nothing has changed regarding our very long understanding of the law. Persons born in the U.S. have automatically been deemed to be citizens ever since the ratification of the 14th Amendment in 1868. And yet the far right is shrieking in horror that the Supreme Court's affirmation will be the nation's undoing.

As an interested citizen, there are various ways to begin to get your arms around this question. You can, for example, seek out and read deeply the works of bona fide experts. To that end, I ordered and have begun reading The Second Founding by Eric Foner. I've only just started, but the book looks promising.

I also decided to ask a few prominent chatbots (I prefer to call them "AI-based search engines.") the following question, to see if their answers would be consistent:

Recently the Supreme Court ruled on birthright citizenship under the 14th Amendment. As one would expect, Justices Thomas and Alito dissented. I'm curious as to whether and to what extent consensus exists among expert historians on the meaning of the 14th Amendment as regards birthright citizenship. Is it strong? Overwhelming? Mixed?

ChatGPT replied:

The short answer: among professional historians who specialize in the Civil War, Reconstruction, and 19th-century constitutional history, the consensus is very strong—arguably overwhelming—that the Fourteenth Amendment’s Citizenship Clause was understood to establish birthright citizenship broadly. The disagreement is not nonexistent, but it is concentrated among a relatively small group of revisionist constitutional scholars, legal originalists, and some political advocates rather than representing a major split within the historical profession. [bold in the original]

Perplexity said:

Expert historians and constitutional scholars overwhelmingly interpret the 14th Amendment’s Citizenship Clause as guaranteeing broad birthright citizenship to nearly everyone born on U.S. soil, with only narrow, traditional exceptions (children of foreign diplomats, hostile occupying forces, and—historically—members of sovereign tribal nations). The consensus is strong, though not literally unanimous; there is a well‑develop but minority “revisionist” line of scholarship arguing for a narrower reading that would exclude some children of non‑citizen parents, especially those here unlawfully.

And Google AI Mode added:

Historical consensus on the original meaning of the 14th Amendment’s Citizenship Clause is strong and overwhelming. The vast majority of legal historians and constitutional scholars agree that the framers intended to establish universal, soil-based birthright citizenship for essentially all children born on U.S. soil, regardless of their parents' race, status, or citizenship. [bold in the original]

Along with additional discussion, Google went on to say:

While there is a dissenting faction of originalist scholars (who, along with Justices Thomas and Alito, argue the clause was only intended to apply to formerly enslaved people and exclude the children of unauthorized immigrants or temporary visitors), this perspective is considered a distinct minority among mainstream academic historians. The overwhelming weight of historical evidence points to a blanket application of birthright citizenship.

All three AI-based search engines had a lot more to say about this than I've reproduced to here. You can paste my question into each of them and read for yourself, and also ask them followup questions.

What's clear is that there's consensus about consensus: The chatbots overwhelmingly agree that historians overwhelmingly agree that the 14th Amendment should be interpreted broadly with respect to birthright citizenship, because that's what the amendment's drafters and ratifiers intended and said, and thus, what the amendment means.

As with many things (global warming, for example), on what basis would we, mere laypersons, deign to dispute the overwhelming consensus of actual experts whose life's work has involved understanding these matters? Because it applies to a lot of things, it's a question worthy of deep reflection.

Justice Samuel Alito does deign to disagree with the experts, but he tips his hand at the very outset, and shows himself to be less interested in what the 14th Amendment means than in his preferred policy outcome. It's a very bad look for a Supreme Court justice, whose job is to uphold the actual meaning of the Constitution as it is and not how he'd like it to be, and to promote the actual rule of law.

In the very second sentence (my goodness!) of his dissent, Alito complains: "As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of “birth tourists,” women who come here solely for the purpose of giving birth to a child and then promptly return home."

Outrage about "birth tourists" is no way to begin a constitutional argument. It just isn't. Suppose, for sake of discussion, that Alito is correct about the prevalence of birth tourism—something that would not have been contemplated by the 14th Amendment's drafters. Does that change the meaning of the amendment? It does not. Is "birth tourism" an unfortunate loophole? That's a subjective question on which people will disagree.

Alito would happily change the meaning of the Constitution to align with his own policy preferences, but that is neither his job nor his right. Unfortunately, he thinks that it is.

The principle dissent in the birthright citizenship case was written by Justice Thomas. As David French put it,

Justice Thomas’s dissenting opinion represents a kind of originalism that seems to use the text as little more than a launchpad for an often idiosyncratic and contestable analysis of our very complicated history. The problem with such an approach is that it can place the judge’s subjective interpretation of history above the text in the interpretive framework, and that compounds the normal human temptation to see what we want to see in American history.

For example, he spends much time talking about a concept, domicile, that does not appear in the text of the amendment. If limiting citizenship to those domiciled in America was what the authors of the 14th Amendment desired, they could have said so. 

But they didn't say so.

Changing the Constitution and the law by judicial fiat is a project this Court has been eagerly advancing since it gained its overwhelming ideological majority in Trump's first term. For example, the Court essentially decided it was time for the Voting Rights Act to be done with; that it had gone on long enough. Except that "long enough" is a matter to be decided not by the Court by by Congress. The Act was most recently reauthorized in 2006 by overwhelming votes (390–33 and 98–0) in Congress.

The Court recently decided that the Federal Reserve is important enough to remain independent, but other agencies Congress intended by law to be independent are not. In this the Court substituted its policy judgement for Congress's. The Supreme Court refused to intervene in a Texas abortion law that went into effect September 1, 2021, even though at that point Roe v. Wade was still the law of the land. The Court didn't overturn Roe v.. Wade until June 24, 2022. Thus did a lawless Court allow an unconstitutional law to remain in effect for nine months.

The examples are almost endless. The 14th Amendment has been a particular target of court conservatives. They've been happy to ignore the plain meaning of the language of the 14th amendment, and not just regarding birthright citizenship. Thus did the Court, in overturning Colorado's 2024 finding against Trump, neuter and basically do away with the amendment's provision that an insurrectionist can't hold office in the U.S. Poof! It's gone.

John Roberts wrote a very strong and correct opinion in the birthright citizenship case, but the decision only passed 5-4. (Bret Kavanaugh upheld birthright citizenship under an 1940s law, but not as a constitutionally protected right.) Expert historians may overwhelmingly agree about what the amendment means, but the nation's highest court does not. Such a tight ruling invites future attempts to undo it. We've not seen the last of this.

Copyright (C) 2026 James Michael Brennan, All Rights Reserved

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