Is America’s birthright citizenship here to stay?

Actions speak louder than words, so goes the popular idiom.

And yet, during the recent oral arguments in the US Supreme Court on the constitutionality of the Trump administration’s order limiting the scope of birthright citizenship, the spoken words from some of the tribunal’s most conservative members have come out thunderously louder than their previous actions, telegraphing their true intentions.

In a contentious proceeding graced personally by no less than the American president himself, the government’s chief counsel argued that the Fourteenth Amendment to the US Constitution did not intend to include children born of persons who were not “subject to the jurisdiction” of the United States, such as offspring of people who were in the country illegally or only temporarily.

Among the chief counsel’s core arguments: the purpose of the Fourteenth Amendment was to grant US citizenship to former slaves since they had already established allegiance to their new country. The same, however, could not be said of people who were in the country illegally or on temporary visas, whose allegiance remained with their home countries, and thus were not subject to the jurisdiction of the United States.

Being “domiciled” in America, the government’s attorney further opined, was an acceptable barometer for passing the “subject to the jurisdiction” test.

While a few exceptions to the rule have remained unchallenged, such as children of diplomats and foreign invaders, Chief Justice John Roberts, a conservative member of the Court, criticized the government’s reliance on these narrow exceptions, calling it “very quirky” when applied to children of undocumented immigrants.

When the government’s counsel argued, quite digressively, that the advent of birth tourism and global travel called for a reinterpretation of the Fourteenth Amendment, the Chief Justice countered: “It’s the same Constitution.”

Another ultra-conservative jurist, Justice Neil Gorsuch, questioned the government’s reliance on the “domicile” test by noting that immigration laws were far less developed during the amendment’s passage in 1868.

He then tossed out a philosophical question: “If somebody showed up here in 1868 and established domicile, that was perfectly fine. So why shouldn’t we… come to the conclusion that the fact that someone might be illegal is immaterial?”

To Justice Gorsuch, therefore, domicile does not depend on one’s immigration status.

Not to be outdone, Justice Brett Kavanaugh, a Trump appointee, challenged the government’s position by citing the 1898 landmark case of US v. Wong Kim Ark and noting that the US Congress, despite being aware of the case’s interpretation granting American citizenship to a US-born offspring of Chinese nationals, passed citizenship laws in 1940 and 1952 using almost identical Fourteenth Amendment language without narrowing its scope.

He said: “One might have expected Congress to use a different phrase… and yet Congress repeats the same language, knowing what the interpretation had been.”

Finally, another Trump appointee, Justice Amy Coney Barrett, questioned the government’s reliance on the law’s purpose rather than its wording. Specifically, she pointed out that the newly freed slaves could have retained their allegiance to their native countries and yet they were incontrovertibly included, contrary to a purpose-based reading of the law.

“That’s not textual,” she told the government’s lawyer. “How do you get there?”

Whether or not these thunderous words bespeak the rebirth of America’s birthright citizenship will be revealed soon enough.