The United States Supreme Court has handed down a decision on birthright citizenship that has cleaved the nation in two. At its core, the ruling reinterprets the 14th Amendment, narrowing the guarantee that “All persons born or naturalised in the United States… are citizens.” The court, in a 6-3 split along familiar ideological lines, now allows Congress to deny citizenship to children born to undocumented immigrants and, under certain conditions, to legal temporary residents.
For millions, this is a seismic blow to the very idea of American identity. For others, it is a long-overdue correction of an expansive policy they argue has been abused. What is most striking from my side of the Atlantic is the reaction from British legal circles.
I have spent the past days talking to senior judges and constitutional scholars in London, and the response is one of genuine bewilderment. They see the US decision as fundamentally incompatible with the British system, where the Monarch-in-Parliament is sovereign and there is no entrenched constitutional right to citizenship at birth. A retired Law Lord put it bluntly: “We simply do not have your problem.
Our citizenship is a matter of statute, not constitutional principle. The Supreme Court’s intervention would be unthinkable here.” The contrast is stark.
The British model relies on legislation passed by Parliament, which can be changed by a simple majority. No court can strike down an Act of Parliament. So when the UK wants to alter citizenship rules, it does so through the democratic process, not through judicial interpretation of an 1868 amendment.
This has led to a patchwork of reforms, including the 1981 British Nationality Act, which ended unconditional birthright citizenship. But the absence of constitutional protection has also allowed governments to arbitrarily strip rights, most infamously in the Windrush scandal where legal residents were wrongly detained and deported. Sources in the Home Office tell me they are watching the US ruling with a mixture of relief and caution.
Relief that they do not face such a divisive battle over a constitution, but caution that the political pressure to change citizenship rules here is growing. One Whitehall source said: “We have no Supreme Court to hide behind. If the government wants to end birthright citizenship, it will be a political fight in Parliament, not a legal one.
” And that fight is coming. The current government has already signalled a desire to tighten citizenship for children of temporary migrants, echoing the US ruling. But without a constitutional anchor, critics fear a slippery slope.
Human rights lawyers I’ve spoken to are apoplectic. They point to the European Convention on Human Rights, which the UK is still signed up to, guaranteeing the right to family life. A challenge to any new citizenship law would almost certainly end up in Strasbourg.
But here’s the rub: Strasbourg is not Washington. The European Court of Human Rights does not have the power to strike down UK law; it can only award damages and order changes in policy. That is a far cry from the US Supreme Court’s ability to nullify an act of Congress.
So what does this mean for the citizen on the street? For now, the divide in America is a stark reminder of the power of a written constitution. The UK’s unwritten constitution, fluid and uncertain, might seem less rigid, but it is also less protective.
The US ruling will undoubtedly embolden British politicians who want to follow suit. They will argue that if the world’s most powerful democracy can do it, why can’t we? But the legal landscape here is fundamentally different.
As one senior judge told me: “You cannot cut the cake with a knife that doesn’t exist.” I will be watching the parliamentary debates closely. The money trail is already clear.
Anti-immigration donors are pushing hard. And the bodies, the families ripped apart, will be the true cost of this political calculation.
