In examining the Supreme Court’s birthright citizenship decision, attribution matters. Legal arguments and judicial opinions are typically anchored in statutes, constitutional text, and precedent. When a court advances a framing that has a well-known lineage without acknowledging it, the omission carries weight.
That context underlies the significance of Chief Justice John Roberts’ majority opinion last summer holding that President Donald Trump’s executive order on birthright citizenship was unconstitutional. The opinion, issued in Trump v. Barbara, emphasized the expansive reach of the 14th Amendment’s Citizenship Clause. According to the ruling, except in a small set of narrowly defined cases, anyone born in the United States is a citizen at birth.
The Supreme Court’s birthright citizenship decision and its lineage
Roberts described statements from Frederick Douglass and analysis by Attorney General Edward Bates during the Civil War era to explain why the amendment’s drafters saw citizenship as central to political belonging. He wrote that the bond conferred by birth was viewed less as a duty than a right and that citizenship was “the right to have rights,” a foundation for participation in the political community.
Citizenship unquestionably carries profound legal consequences, including protection from forced removal. Yet Roberts was not the first to deploy the exact formulation “the right to have rights.” Courts have repeated that phrase for decades.
Former Chief Justice Earl Warren described citizenship as a person’s basic right, calling it nothing less than the right to have rights. In another case, Warren noted that someone who loses citizenship “has lost the right to have rights.” By omitting this lineage, the Barbara majority missed an opportunity to situate its analysis within a well-established judicial tradition that treats citizenship as fundamental.
The phrase also has a prominent philosophical pedigree. In 1951, Hannah Arendt used “the right to have rights” in The Origins of Totalitarianism to describe the right of every person to belong to humanity. Without that baseline, she warned, people faced “expulsion from humanity altogether.”
Drawing from her experience as a German Jew persecuted by the Nazi regime, Arendt explained how stripping citizenship can reduce people to a status outside the law. Deprived of access to legal systems, they could be treated as rightless, which she described starkly in her work.
Arendt’s analysis did not end with Nazi Germany. Writing from New York, she observed how displaced people were often met with platitudes rather than the dignity owed to them. In her 1943 essay “We Refugees,” she criticized curfews in Paris “because we were Jews” and restrictions in Los Angeles “because we are ‘enemy aliens.’”
She noted how terms like “refugee” evolved during the upheavals of World War II, shifting from people persecuted for acts or opinions to those rendered stateless without any such acts. Her reflections were grounded in lived experience. She escaped Nazi-occupied France using forged papers to reach the United States, while her friend Walter Benjamin, complying with changing Spanish immigration rules, took his own life at the border.
Across Arendt’s work, a consistent theme emerges. The legal boundaries of political membership are malleable and can shift with the political winds. By rejecting the attempt to curtail birthright citizenship, the Barbara majority preserved, at least for now, what it called the promise of American citizenship.
Subject to longstanding narrow exceptions, everyone born in the United States remains entitled to participate in the political community. Still, the opinion’s failure to acknowledge Arendt’s “right to have rights,” and the historical circumstances in which she analyzed it, narrows the frame of the court’s reasoning.
It leaves the majority sparring with Justice Clarence Thomas’s lengthy dissent over historical interpretation, while forgoing a broader account of why citizenship matters to modern life. For Arendt, the right to have rights is not only a historical question. It is about the present.
Without the ability to make demands of government, people risk being pushed outside the political community. As Arendt’s examples show, exclusion can carry catastrophic consequences.
For any lawyer, and especially for the chief justice, overlooking a central source is no small lapse. In this instance, passing over Arendt’s analysis blunts the moral and analytical force of an opinion about birthright citizenship that addresses questions with potentially life-or-death stakes.