This brief piece addresses the dispute sparked by Donald Trump’s executive order denying birthright citizenship to two classes of people traditionally included under the citizenship clause of the Fourteenth Amendment. A primary goal is to provide a historical perspective on arguments made by both sides that are too frequently neglected in media coverage of the dispute. The piece does not predict how SCOTUS might rule, but it does make a case for the nation’s responsibility to children who have violated no law. Through textual and historical analysis, it also refutes two law professors who propose an originalist interpretation of the Fourteenth Amendment that supports Trump’s effort to deny birthright citizenship to children born to undocumented immigrants. Drawing on works of literature, this article hopes to clarify the consequences of the complicated legal issues involved, including the bigoted history of previous efforts to restrict birthright citizenship.

The Insular Cases, a relic of imperial-era judicial reasoning, have long dictated the political and constitutional status of U.S. territories. In United States v. Vaello-Madeo, Justice Neil Gorsuch’s concurring opinion signaled a critical moment for reevaluating these precedents. This Note examines the enduring consequences of the Insular Cases, focusing on the Pacific Island Territory of Guam as a case study. Specifically, it explores how Guam’s political subordination—rooted in the judicial distinction between incorporated and unincorporated territories—has led to disparities in federal Medicaid funding. By analyzing the relationship between territorial representation in Congress and the structural inequities in health care funding, this Note argues that the constitutional instability caused by the Insular Cases presents a ripe opportunity for legal challenge. Justice Gorsuch’s opinion opens a path for reconsidering the Insular Cases, with federal Medicaid funding serving as a compelling vehicle for addressing the broader constitutional and democratic deficiencies imposed on U.S. territories.

The conflict between the US government and the Mormons in Utah Territory during the second half of the nineteenth century reflected shifts in the American territorial system. Through a repudiation of religious practices and dismantling of the Latter-Day Saints’ Church as an institution, the federal government demonstrated a willingness and ability to interfere with and regulate traditional local issues such as marriage and religion. This provided a foundation for the changes to the territorial system outlined by the Supreme Court in the Insular Cases. Scholars have overlooked the continuities between earlier territorial policy and the post-Insular Cases colonial system. Linking the struggle over authority in Utah Territory with the outcome of the Insular Cases as a component of territorial policy history fills this gap and helps to illuminate the policy connections between continental expansion and overseas expansion.