The Conservative Plan to End Birthright Citizenship Is a 50-Year Project. They Just Told Us So.

This is a free preview of a paid episode. To hear more, visit michaelfanone.substack.comHere’s a phrase I want you to stop trusting: settled law.Americans got told for two generations that Roe v. Wade was settled. Untouchable. Precedent stacked on precedent. And then one day it wasn’t — because a movement spent fifty years quietly building the lawyers, the judges, the scholarship, and the Supreme Court seats required to unsettle it. They didn’t win an argument. They changed what an argument even was.I’m bringing that up because the exact same machine just turned to face the Fourteenth Amendment. And the people running it are not being subtle about it.Start with the loss, because it’s the part everyone misreadsIn June, Donald Trump lost on birthright citizenship. Not to a protester, not to some district judge he could rage-post about for a week. He lost at the Supreme Court — six of whose nine justices were appointed by Republican presidents, three of them by Trump himself.The Court’s answer was about as clean as these things get: if you’re born in the United States, with a few narrow historical exceptions, you’re a citizen. That’s what the Constitution says. Trump tried to erase it with an executive order. The Court told him no.For a normal president, that’s the end of the story. You lost at the highest court in the land, on your home turf, with your own appointees on the bench. You move on.That is not what happened. And the reason why is the actual story here — bigger than one executive order, bigger than Trump.The tell is that they’re bragging about the timelineA few weeks after the ruling, conservative lawyers, former Trump officials, and immigration activists gathered near Capitol Hill — people tied to America First Legal, the Heritage Foundation, state attorneys general offices — to map out what comes next. Per POLITICO, one of the voices in the room belonged to John Eastman. Yes, that Eastman — the lawyer who helped engineer the scheme to overturn the 2020 election, and who’s also spent decades arguing that everyone’s understanding of birthright citizenship is wrong.And Eastman didn’t treat the Supreme Court loss as a loss. He called it a win — because the argument is now mainstream. It’s being debated. It’s on the table.Sit with that, because it’s the whole playbook in one sentence. You don’t begin by winning. You begin by making something that was settled feel debatable. Then you write the law-review articles. You hold the conferences. You draft the model legislation. You teach it to law students until a generation of young lawyers grows up believing there’s a live controversy here. You start asking judicial nominees where they stand. And you wait.Do that long enough and a fringe theory hardens into “one side of a legitimate constitutional debate.” That is precisely the road Roe traveled, in reverse. Mike Davis, who runs the Trump-aligned Article III Project, said the quiet part into a microphone: the Court just turned birthright citizenship into the next Roe — a fight conservatives might spend the next fifty years winning. His stated goal, in his own words: “We need nine Alitos on the Supreme Court.”That’s not a conspiracy theory I’m assembling from scraps. That’s them handing out the blueprint.While the long game gets organized, Trump is picking at the locksThe outside-the-White-House campaign is the marathon. Inside the White House, Trump is running the sprint — testing what he can get away with right now.Five weeks after losing, he signed two new executive orders. One goes after so-called “birth tourism” — people the administration says travel here specifically to give birth so their child is a citizen. The others try to carve citizenship away from narrower groups: certain foreign-government personnel, and people the government labels “alien enemies.”Here’s the thing that tells you it’s strategy, not policy: a lot of it isn’t even new. The New York Times reported that a Homeland Security official admitted part of the birth-tourism order changes essentially nothing operationally, because existing law already covers fraud and misrepresentation. So why sign it?Because the goal isn’t the order. The goal is the edges. The Court slammed the front door — you can’t strip citizenship from a kid just because the parents are undocumented or here temporarily. So the administration is now rattling every side door and window, looking for a narrower category where a judge might decide presidential power over immigration gives it more room. And every attempt manufactures a fresh lawsuit, a fresh ruling, a fresh shot at getting some version of this back in front of the justices someday.That’s not flailing. That’s how you keep a “settled” question permanently pried open.Why the June ruling was stronger than the headline numberThe vote was 6-3, but the guts matter more than the tally.Five justices — including Chief Justice John Roberts and Justice Amy Coney Barrett, joining the three liberals — grounded their answer in the Constitution itself: the Fourteenth Amendment protects birthright citizenship for children born here to undocumented immigrants and temporary residents. That’s a constitutional floor.Justice Brett Kavanaugh made the sixth vote against Trump, but on narrower ground — he leaned on federal statute, and pointedly left the door open to Congress changing that law down the line.So the movement didn’t read a 6-3 defeat and shrug. They read the opinions and started cataloging every opening: Congress. Different executive theories. Different categories of people. Future judges. Future justices. And, eventually, a head-on run at the constitutional interpretation itself. When you’re playing a fifty-year game, a loss is just a map of where the walls are.“The babies of slaves” — and the calendar problemTrump keeps describing the Citizenship Clause like somebody scribbled it in the margins right after Appomattox for one tiny purpose that no longer applies. At the White House, he said it was meant for “the babies of slaves.”There’s a small problem: the arithmetic. The Civil War ended in 1865. The Fourteenth Amendment was ratified in 1868. And more importantly, the men who wrote it didn’t write what Trump wishes they’d written. Yes, undoing slavery and the monstrous Dred Scott decision was the beating heart of the clause. But the words Congress actually chose weren’t “the children of the formerly enslaved.” They were:“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”All persons. Not some. And in 1898, in United States v. Wong Kim Ark, the Supreme Court applied exactly that — recognizing the citizenship of a man born in San Francisco to Chinese parents who weren’t citizens themselves. This isn’t a Biden-era invention or a liberal reading smuggled in last Tuesday. It’s been the law across the entire life of the country.So believe themHere’s what I’ll defend all day: these people are allowed to do this. They can publish, organize, lobby Congress, push constitutional amendments, and campaign for judges who share their view. That’s the system working. Nobody should want it any other way.But the rest of us are allowed to see it clearly — and to refuse the one thing they’re counting on, which is that we’ll file this under “Trump lost, moving on.”He didn’t move on. He signed two more orders five weeks later. His allies are building lawyers, targeting law schools, floating litmus tests for judges, drafting legislation, and openly modeling the whole thing on the decades-long campaign that ended Roe.This was never a four-year project. It may not even really be a Trump project — he won’t be here in fifty years, and neither will most of the people in that room. That’s the point. They’re building institutions designed to outlive every one of them, aimed at a single goal: changing who gets to count as an American.The Supreme Court told this president the Constitution doesn’t mean what he wants it to mean. For almost anyone else, that’s the last page.For this movement, it was the first.🟧 Paid subscribers get 15% off your next merch order🟧 Founding Members get 20% off for lifeYou’ll get the link in your welcome email.GET DISCOUNTS BELOW! ENJOY!