Thirty-Eight Days After the Ruling: Shapiro on Birthright Citizenship

Ben Shapiro: birthright citizenship is "not mandated by the Constitution." Verdict: mostly-false, truth score 0.15, confidence 0.90.

The Supreme Court answered that exact question 38 days before he said it — and the 1866 Senate had already answered it before that.

On August 7, 2026, on The Ben Shapiro Show, Ep. 2481 ("FINALLY: Trump ENDS Birth Tourism!"), Shapiro argued that the Fourteenth Amendment does not require birthright citizenship because the framers never contemplated large-scale immigration.

The steelman is real. In Trump v. Barbara (June 30, 2026), the vote was 6-3 to strike down Executive Order 14160 but only 5-4 on the constitutional question. Justice Kavanaugh supplied the sixth vote on statutory grounds while declining to say the Constitution compels the result, and wrote that a congressional statute creating exceptions would "pass constitutional muster." Thomas, Alito and Gorsuch dissented. Barnett, Wurman, Lash and Erler make the academic case. Wong Kim Ark's parents were lawfully domiciled, which is a genuine distinction.

It fails anyway, for two reasons. "Is not mandated," in the present tense, describes what the law is — and the Court held that children born here to unlawfully or temporarily present parents are "subject to the jurisdiction thereof" and citizens at birth. Shapiro concedes the ruling eleven seconds later. Second, the supporting premise is not merely contested but refuted by the record: in the 1866 Senate debate, Sen. Cowan objected specifically to children of Chinese immigrants and Roma becoming citizens, and Sen. Conness answered that they should be. Both men understood what the Amendment would do.

Also in the segment: the Center for Immigration Studies estimate of 20,000-26,000 birth tourists a year. Niskanen found that more than 90% of the mothers CIS counted had been in the U.S. at least two years and puts the defensible figure under 2,000; Penn State researchers estimate 5,000-10,000; CDC recorded 9,576 births to parents with non-U.S. addresses in 2024. At the high end that is about 0.3% of 3.6 million annual U.S. births. No federal agency tracks it, so no one can claim precision in either direction.