In constitutional democracies, outcomes matter—but process matters more. The current agitation around birthright citizenship in the United States risks collapsing that distinction, inviting courts to adjudicate substance while sidestepping the procedure that gives constitutional meaning its legitimacy.
At the centre of this debate sits the United States Constitution, specifically the Fourteenth Amendment to the United States Constitution, which provides that all persons born or naturalised in the United States, and subject to its jurisdiction, are citizens. This is not an ambiguous statutory provision. It is constitutional text—entrenched, deliberate, and historically anchored in the post-Civil War settlement.
Procedure Is Not Optional
Any attempt to alter, reinterpret beyond recognition, or effectively nullify birthright citizenship must pass through the constitutional amendment process. That process is neither casual nor convenient. It requires initiation by United States Congress, passage by a two-thirds majority in both chambers, and ratification by three-quarters of the states.
This is not bureaucratic excess—it is constitutional design. It ensures that rights of such magnitude are not subject to transient political moods or executive expediency.
An executive order, by contrast, is an administrative instrument. It cannot amend the Constitution, nor can it override explicit constitutional guarantees. To suggest otherwise is to invert the hierarchy of law: placing executive will above constitutional supremacy.
The Supreme Court’s Misplaced Engagement
This brings us to the puzzling posture of the Supreme Court of the United States. Why is the Court entertaining arguments on the merits—the desirability, scope, or policy implications of birthright citizenship—when the method of change itself is constitutionally defective?
Courts are not meant to legitimise unconstitutional pathways by engaging their outcomes. The threshold question should be dispositive: Can this be done through executive action? If the answer is no—and constitutionally, it is—then the inquiry should end there.
To proceed further is to grant oxygen to an unconstitutional mechanism, allowing it to masquerade as a legitimate legal controversy rather than what it is: an attempt to bypass the amendment process.
Substance vs. Structure
There is a dangerous temptation in constitutional law to prioritise ideological outcomes over structural integrity. Those who oppose birthright citizenship may find it expedient to argue policy before procedure. But constitutional governance demands the reverse.
Today it may be birthright citizenship. Tomorrow it could be free speech, due process, or equal protection. Once the procedural guardrails are weakened, no right remains secure.
The Real Constitutional Question
The debate should not be “Is birthright citizenship good policy?”
The real question is: Can it be altered without constitutional amendment?
On that, the Constitution is unequivocal.
If there is sufficient political will to change the meaning of citizenship in America, the framers have already provided the mechanism. It runs through Congress, the states, and the people—not through executive orders, and not through judicial improvisation.
Anything else is not constitutional interpretation. It is constitutional circumvention.
Centre for Nigeria Progress 