Forget the TV drama of “democracy under attack.” There is no season twist on Capitol Hill, no slick villain delivering a chilling monologue to a string-quartet soundtrack, and no mastermind plotting from half a world away to bring America to its knees. The real plot twist unfolds much closer to home. It is the claim that the US Constitution itself was never meant to protect everyone living under it. To doubt who “We the People” are forces us to ask ourselves who we are as Americans and, more importantly, who we choose to be. It is also the perfect moment to confront a disturbing claim that surfaced this summer: that the Constitution somehow belongs only to white Americans, that courts could sanction “shoot-to-kill” orders at the border to repel an “invasion” of migrants, that nonwhite citizens could be stripped of their right to vote, that the Reconstruction Amendments, the very backbone of equal protection, no longer count, and that the US Supreme Court should cast aside birthright citizenship and protecting access to K-12 schooling for undocumented children.
These claims perform mental gymnastics to pass as originalism, but the routine only exposes their weakness. Not only are the ideas distorted enough to twist your brain into a pretzel, but they are also unconstitutional and frankly absurd.
The Preamble is a mission statement
When you visit the Rotunda of the National Archives in Washington, DC, where the Constitution, the Declaration of Independence, and the Bill of Rights lie under glass, your eyes are naturally drawn upward. Towering above these founding documents are two grand murals depicting idealized portraits of the Founding Fathers, rendered as a uniform group of dignified, elite, able-bodied white men.
But that familiar picture leaves out an essential truth. Even Gouverneur Morris, who wrote the Constitution’s iconic opening “We the People,” lived with a disabled right arm and, after losing his left leg in a carriage accident, relied on a wooden prosthesis for the rest of his life. Morris understood all too well the vulnerability, pain, and physical limitation firsthand in a society with no modern medicine, mobility devices, or legal protections for disabled people. Yet he chose to begin the Constitution not with “We the property owners,” “We the able-bodied,” or “We the white citizens,” but with “We the People.”
That choice matters. It reminds us that the Constitution’s promise of belonging was never meant to be narrow or exclusive. The Preamble of the Constitution, “We the People,” is a mission statement. It expresses goals, not standalone powers, and it cannot override rights found in the rest of the Constitution. For over a century, the Supreme Court has made this clear: the Preamble offers guidance and purpose, but it has no legal force of its own. Real power must come from the Constitution’s operative clauses, not the Preamble.
If we are serious about grounding constitutional meaning in text and history, we must look at history objectively and not cherry-pick our own timeline.
Original meaning points to Reconstruction for equality and citizenship
Many arguments today about citizenship and equality try to anchor their meaning in 1787, as if the Founding settled these questions forever. But that is not how constitutional interpretation works, and it is not how the Court applies original meaning. Original meaning attaches to the moment a provision was adopted. For citizenship and equality, that moment is Reconstruction in 1868, not the Philadelphia Convention in 1787.
When the Court interprets the Fourteenth Amendment, it looks back to 1868, because that amendment fundamentally changed the Constitution’s treatment of individual rights and state power. The Court focuses on how the Fourteenth Amendment was publicly understood at the time of its ratification, not on assumptions from 1787.
When the Constitution is amended, especially in a way that redefines who belongs in the political community, the interpretive clock resets. Reconstruction did not merely add a few lines to the Founding charter; it marked a constitutional shift in the treatment of citizenship, equality, and the duties of the states. Any claim about who counts as part of “We the People” that ignores 1868 is not originalism, but dangerous nostalgia.
What “the people” means in modern doctrine
Arguments that try to shrink “the people” to a racial or exclusive club often lean on two Supreme Court cases: District of Columbia v. Heller and United States v. Verdugo-Urquidez.
Verdugo-Urquidez is the case most frequently cited as proof that “the People” can be read as a fenced-off category. The case involved a search of a Mexican citizen’s home in Mexico, conducted by US agents. Chief Justice Rehnquist’s opinion held that the Fourth Amendment did not apply to that extraterritorial search. To get there, the Court described “the People” as those who are part of the national community or who have developed sufficient connection to it. On that basis, the Court concluded that constitutional protections did not stretch to non-citizens abroad. Justice Kennedy, whose vote made the majority, refused to treat the phrase as a limit on protections for people inside the US. If that same search had taken place in a US home, he wrote, “the full protections of the Fourth Amendment would apply.”
Verdugo-Urquidez drew a geographic line, not a racial or caste-based one. It answered a narrow question about applying the Constitution outside US borders. There is nothing in the opinion that suggests treating immigrants, non-citizens, or non-white people within the United States as constitutionally lesser. For more than a century, the Court has done the opposite by consistently holding that “persons” in the United States are protected by core constitutional guarantees, including due process and equal protection. That principle is older than Ellis Island. In Yick Wo v. Hopkins, the Court struck down discriminatory enforcement that targeted Chinese immigrants in San Francisco. In Zadvydas v. Davis, the Court refused to allow the government to detain non-citizens inside the country indefinitely. Presence in the United States triggers constitutional limits on government power.
Heller, meanwhile, is sometimes invoked to suggest that “the People” historically meant a restricted club, but Heller points in the opposite direction. While the case is best known for holding that the Second Amendment protects an individual right to bear arms, the Court referred to “the People” as “members of the political community.” It is not a code word for a preferred race or heritage and it certainly is not a synonym for “white citizens.” The Court’s analysis recognized that the Founding era often failed to live up to that ideal, but the meaning of the phrase in our constitutional text is not frozen to those injustices.
Attempting to turn these cases into a blueprint for a racially exclusive constitutional order reads something into them that is simply not there. Neither case authorizes a two-tiered constitutional structure where some people in the US count as “We the People” and others are relegated to permanent second-class status.
Equal protection and alienage: what the standards actually are
Attempts to draw a hard line between citizens and non-citizens runs into long-settled equal protection doctrine. Let us start with the states.
The Court has held for more than fifty years that when a state discriminates against lawful non-citizens, the rule is usually strict scrutiny—the highest standard of constitutional scrutiny. The Court has struck down state laws that denied welfare benefits to resident non-citizens, holding that alienage is a suspect classification and that states must show a “compelling interest” to justify treating non-citizens differently. There is a narrow exception when the job involves the execution of the broad powers vested in government. This “political function” exception applies only to roles intimately linked to democratic self-government, such as police, certain public school teachers, and civil service jobs. Outside that tight lane, state-level alienage rules almost never survive.
The Court has acknowledged that Congress has broader authority to draw distinctions among non-citizens because immigration and naturalization are federal powers. However, that flexibility does not extend to race because the Court has held that all federal racial classifications trigger strict scrutiny, just as they do for states, even when Congress acts in areas of special federal authority. Federal power over immigration does not open the door to race-based constitutional carve-outs. The right to vote cannot be fenced by bloodline either. The Court struck down Hawaii’s attempt to limit voting in statewide elections to individuals of Native Hawaiian ancestry. The Court rejected ancestry as a stand-in for race, calling it an impermissible criterion for voter qualification. The case makes clear that states cannot turn heritage into a gatekeeping tool for democratic participation.
Birthright citizenship is not up for grabs
Some of the most sweeping claims in this debate casually suggest that America can “revisit” who counts as a citizen at birth, as if the Fourteenth Amendment were a loose policy memo rather than a constitutional guarantee. However, birthright citizenship is not an open question.
The Citizenship Clause of the Fourteenth Amendment says, in plain terms, that nearly everyone born on American soil, except the child of a foreign diplomat or enemy occupier, is a US citizen at birth. This was written after the Civil War to obliterate the racial caste system embedded in Dred Scott and to ensure that no future Congress, court, or president could decide that certain babies “don’t really count.”
The Court cemented this in United States v. Wong Kim Ark. The government tried to deny citizenship to a man born in San Francisco to Chinese immigrant parents. The Court rejected that attempt and held that the Fourteenth Amendment constitutionalized the common-law rule of jus soli: if you are born here, you are American. No racial fine print. No “citizenship by pedigree.” No exception for the immigrant group disfavored at the moment. That rule has stood for more than 125 years.
To pretend that birthright citizenship is a loose thread waiting to be pulled is not just legally wrong; it is historically upside down. Overturning it would require the Court to resurrect the logic of Dred Scott and announce that some American-born children are not American after all. It would create a permanent hereditary underclass of US-born noncitizens and result in people who could live their entire lives here and yet have no legal country. The practical fallout would be staggering: millions stripped of passports, voting rights, school access, employment authorization, Social Security numbers, military eligibility, and basic civic identity. The US would be in the business of generating stateless infants on purpose.
To get there, the federal government would have to do something the Constitution flatly forbids by sorting newborns by bloodline and race. The Court has been clear that federal racial classifications trigger strict scrutiny. If you give citizenship to some babies born in America but deny it to others because of who their parents are, that is not “fixing” the Constitution — that is more like trying to fix a typo by shredding the whole book.
Birthright citizenship is the promise that America will never again decide who counts by bloodline or ancestry. Scrapping it would manufacture a permanent underclass of American-born children and drag the country back toward the very hierarchy the Fourteenth Amendment was designed to end. This debate is about whether we still believe in “We the People” and whether we mean all of us.
The “state war power” and the Guarantee Clause
The most startling turn in the “national constitutionalist” manifesto that surfaced this past summer is its claim that migration qualifies as an “invasion” and that states could, with a judicial blessing, respond with armed force. It is an argument built for headlines and cable hits, but it runs into three brick walls in the real world.
First, the Constitution did not cast the judiciary for this role. The idea hinges on the Guarantee Clause, the promise that the federal government will protect states against invasion. However, this clause is not something judges can enforce because it is a political question, not a legal one. The Court repeated the point in 2019, making clear again that Guarantee Clause claims are nonjusticiable. Judges do not referee “invasion” declarations or green-light war plans. It is simply not their lane.
Second, states do not get to choose their own adventure when it comes to immigration. The US tried that in the 19th century, and it was chaos. That is why immigration became a federal power in the first place. The Court has repeatedly said states cannot run their own admission or removal systems or create fifty different foreign policies by proxy, including striking down state immigration measures in 2012 that conflicted with federal law and reaffirming that immigration is a federal issue, not for a state. One country means one immigration system, not fifty.
Third, the Constitution does not magically evaporate at the border. A “shoot to kill” policy is not bold. It is unconstitutional. The Court has held that officers cannot use deadly force against a fleeing person unless there is an immediate threat of death or serious harm. That is a Fourth Amendment rule about reasonableness, and it does not dissolve when the word “border” is invoked. Force must be judged case-by-case, under the totality of the circumstances and not through blanket rules. Calling migrants “invaders” does not, by some hocus-pocus trick, convert civilians into enemy combatants or suspend the Bill of Rights. A “shoot to kill” policy also violates due process by turning the executive branch into judge, jury, and executioner all in one. The government does not get to skip the Constitution just because someone yells “invasion.”
The Reconstruction Amendments are part of the law
Claims suggesting that the Fourteenth and Fifteenth Amendments may not have been validly ratified and therefore courts could treat them as optional, are downright absurd. The Court has made clear that disputes over the validity of an amendment’s ratification are not for judges to decide. Such political questions belong to Congress, not the judiciary. Once an amendment is duly proclaimed, it becomes part of the Constitution itself. The constitutional text would be unworkable if settled amendments could be relitigated every time the political pendulum swings. Stability requires treating ratified amendments as controlling law unless altered through the amendment process prescribed in Article V.
Nor does the Constitution contain an “emergency override” allowing rights to disappear when convenient. Even during the Civil War, the Court rejected the notion that constitutional guarantees vanish in moments of crisis. As long as the civil courts are open, the Constitution applies in both war and peace. If suspending constitutional rights was not permitted when the country’s survival was at stake, it certainly is not a tool available for ordinary policy disagreements today.
Even if we play along with the thought experiment and pretend the Fourteenth and Fifteenth Amendments disappeared in a puff of smoke, the Constitution would still bar efforts to restrict its protections to white Americans, due to long-standing limits that predate Reconstruction.
Begin with first principles from the Founding and the Marshall Court era. In McCulloch v. Maryland, Chief Justice Marshall made the point that federal power must be traced to an operative grant in the Constitution, and any implied authority must flow from those grants, not from broad aspirations. The government can use powers that are not spelled out word-for-word, but only if they are reasonably connected to a power that is expressly granted. The Court upheld that idea in Gibbons v. Ogden that national power must come from actual constitutional text, such as the Commerce Clause. Similarly, the Constitution’s Preamble is not a magic coupon you can redeem for new federal powers that are not written anywhere else in the Constitution. Likewise, it cannot be used to take rights away from those protected by the Constitution. “We the People” tells us why the Constitution was written, not what the government is allowed to do.
The same is true of the attempt to turn “invasion” into a judicially managed border war. Treating migration as a justiciable “invasion” that courts should respond to with force runs into a wall that predates Reconstruction. Since 1849, the Guarantee Clause has been treated as a political question beyond the courts’ reach. Federal judges do not issue war plans, border directives, or “defense” orders under Article IV. The clause has never been a litigation vehicle for state-level militarization, racialized or otherwise.
Immigration’s national character also did not begin in 1868. The Founders vested naturalization power in Congress, placed foreign affairs in the federal government, and made federal law supreme. Antebellum decisions, including the Passenger Cases, rejected state efforts to tax, screen, or exclude arriving immigrants because such measures intruded on national commerce and foreign policy.
The Bill of Rights likewise undercuts any claim that constitutional protections were racially cabined at the Founding. Its guarantees were written in universal terms protecting “persons” and “the people” without racial qualifiers. The Fifth Amendment binds the federal government as to any “person,” and the First and Fourth refer to “the people” inclusively. Federal courts before the Civil War recognized that non-citizens could invoke federal protections and appear in federal courts in ordinary litigation and admiralty. A theory that rewrites those rights as “whites only” is not an interpretation of the original Constitution.
The civics that underwrite the doctrine
All of this doctrine rests on a straightforward idea about membership that National Immigrants Day captures. When President Ronald Reagan proclaimed October 28 as National Immigrants Day in 1987, he said we are “the sons and daughters of every land,” yet “one people,” drawn by “freedom’s holy light.” He pointed to the framers who began our charter with “We the People,” and invoked Crevecoeur’s image of a people “melted into a new race” defined by a shared loyalty to liberty rather than by blood.
President Reagan captured what our constitutional journey has been moving toward for more than two centuries: a broader, more inclusive understanding of who belongs in the American “we.” The test now is whether we will continue that work, or let fear and distortion blindside us into inventing ideas the Constitution itself rejects.
Read the Constitution without fear or distortion, and its direction is unmistakable. It does not draw its circle of belonging by race. The Preamble sets our aspirations, not our exclusions. The nation amended its charter to expand freedom’s reach and make citizenship, equality, and protection more durable. “We the People” describes a community held together by shared principles and responsibility, not shared ancestry. Nothing in our constitutional design empowers governments to turn human beings into targets or rights into racially gated privileges.
The truth is simple: a country that limits who counts as “the people” to a single race betrays the very idea of a constitutional republic. If America is to remain America, the answer must be clear. We honor the Constitution by living up to its promise that freedom, dignity, and protection are for all who call this country home.
Joshua Villanueva is JURIST’s Washington, D.C. Correspondent and an LL.M. candidate in National Security and U.S. Foreign Relations Law at The George Washington University Law School.
