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THE EMANCIPATION PROCLAMATION OFFERS A HINT ON WHAT THE SUPREME COURT
WILL DO ABOUT BIRTHRIGHT CITIZENSHIP  
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Akhil Reed Amar
September 22, 2025
TIME
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_ On birthright citizenship, we can thus follow Lincoln, or we can
follow Trump. But we cannot follow both, because Trump is trying to
undo precisely what Lincoln and his allies did, beginning eight score
and three years ago. _

1862: President Abraham Lincoln reading the Emancipation
Proclamation, which declared that all those enslaved in rebel-held
territory would be "thenceforward, and forever, free.", MPI/Getty
Images

 

Eight score and three years ago—on Sept. 22, 1862—President
Abraham Lincoln issued a bold executive order, now known as the
Preliminary Emancipation Proclamation
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that changed the meaning of the Civil War and bent the arc of American
history. In the process, Lincoln also gave today’s Americans a
perfect template against which to measure our current president’s
boldest executive order, which Donald Trump issued on the first day of
his second term.

That order
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purports to reinterpret the Constitution’s guarantee of birthright
citizenship, directing federal officials to withhold citizenship
documents such as passports and social security cards from any baby
born in the U.S. unless at least one of the newborn’s parents is a
U.S. citizen or permanent legal resident. Lower-court judges across
the country have strongly opposed this decree, placing it on hold, for
now. The Supreme Court will likely rule on the matter sometime soon. A
fresh look at Lincoln’s sweeping edict can help us predict how the
justices will likely rule on Trump’s sweeping edict, and why.

Before Lincoln issued his preliminary proclamation, the Union’s sole
official war aim had been to preserve the Union itself. But Lincoln
began to shift that priority, ending his pronouncement with a zinger:
_Come New Year’s Day_, it read, _"all persons held as slaves” in
rebel territory “shall be then, thenceforward, and forever free._”

Yet even as Lincoln pointed toward a future in which millions of
Confederate slaves would soon become free, he also endorsed efforts
“to colonize persons of African descent, with their consent, upon
this continent, or elsewhere.”

As promised, on New Year’s Day, 1863, Lincoln issued the final
Emancipation Proclamation
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“All persons,” he said, “held as slaves within said designated
States, and parts of States, are, and henceforward shall be free.”
Lincoln’s final proclamation also featured a thrilling change. All
mention of subsidized colonization was gone; in its place was the news
that freed men, if of age, could now join the Union Army and
Navy—and thereby prove to the world their manhood and just claims to
full and equal American citizenship.

Now that Black men were to fight alongside their white brothers in
arms, it no longer made sense to see these former bondsmen as Lincoln
had once seen them—akin to the Israelite slaves in ancient Egypt,
strangers in a strange land, destined for post-liberation emigration
to some faraway place. Lincoln now began to envision them as not
merely _free_ Americans but also _equal_ Americans, fighting for their
_native_ land, the land of their _birth_. 

In law—if not yet in fact, as the Union Army had only begun its work
of sweeping the South clean—some three million souls who had gone to
sleep enslaved the day before would wake up the next day as free men,
women, and children.

By war’s end in early 1865, Lincoln and his allies insisted that
America needed to go even further. Not only must all Confederate
slaves walk free; so must all enslaved persons in border states that
still allowed slavery. Even more sweepingly, slavery itself must end,
everywhere, immediately, and forever. This was the platform on which
Lincoln won re-election in 1864—a re-election made possible by
battlefield triumphs due in large part to Black arms-bearing. 

Lincoln did not live to see the final adoption of the 13th Amendment
in 1865, which essentially ended slavery everywhere in the U.S. Nor
did he live to see three more constitutional amendments—the 14th,
15th, and 19th—that promised not just freedom but full birthright
equality to America’s Black citizens, and, later, to America’s
women.

Still, it was Lincoln who set the stage for all these amendments. His
September proclamation and January refinement precipitated today’s
constitutional system, a system based fundamentally on the proposition
that all Americans are _born equal_.

Over the years, critics of Lincoln’s actions have raised three big
constitutional questions about his two big proclamations.

First, a federalism question: Did the central government have power to
free slaves in individual states?   

_Yes._ The Constitution was designed above all else for “common
defense”—a phrase that appeared prominently in the
Constitution’s Preamble and again in a later key passage. In order
to win a war—especially a war that threatened the nation’s very
existence—the federal government enjoyed plenary power to liberate
slaves, as nations at war had commonly done long before the
Constitution was drafted and ratified. In the Revolutionary War
itself, Britain’s Lord Dunmore had emancipated large numbers of
southern slaves as a war measure—a fact well-known in both the 1770s
and the 1860s. 

Second, an executive-power question: Could President Lincoln act
without a congressional statute expressly authorizing his
proclamations in advance?

_Yes_. Lincoln was acting hand in glove with Congress, which was
controlled by an anti-slavery party that he himself had co-founded and
had led to a smashing electoral victory in 1860. His preliminary
proclamation quoted at length key passages of Congress’s Second
Confiscation Act, which he had signed into law in July 1862. That act
had authorized the Union army to liberate a wide swath of enslaved
persons who would thereafter be “forever free.” Though Lincoln’s
proclamations went even further, they vindicated the emancipatory
spirit of that congressional act. Also, the policy that Lincoln
announced in mid-September would go into effect only in the new year.
Congress thus had plenty of time to object, but never did. Instead,
Congress continued to fund Lincoln’s war efforts and to support his
general conduct of the war. Lincoln was commander-in-chief of
America’s army in a time of an actual and indeed existential war
that Congress had expressly, emphatically, and repeatedly blessed in
every way. Within broad limits, he thus had both constitutional and
statutory authority to wage that war as he saw best.

Third, a rights question: could the government deprive masters of
their property rights over slaves?

_Yes. _At most, a slaveholder might deserve just compensation for the
loss of his slave property—an issue that could be litigated in court
after the fact of immediate emancipation. Just as a government could
take a man’s land to build a fort and take a man’s corn to feed an
army, so it could take a man’s slaves to win a war.

In short, in both proclamations Lincoln was a consummate lawyer who
paid exquisite attention to questions of constitutionality and
scrupulously honored his oath of office to act _under_ the
Constitution, not over or outside it.

President Trump’s executive order on birthright citizenship stands
in dramatic contrast.

On the federalism question: Nothing in the Constitution authorizes the
federal government to deprive native-born Americans of their
birthright citizenship. 

On the executive-power question: America is not now at war, and the
war power expressly claimed by Lincoln in his two proclamations does
not apply. 

Most important of all, on the rights question: The Fourteenth
Amendment vests every person born on American soil under the American
flag with the right to be a free and equal citizen.
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This language directly derives from Lincoln’s and Lincoln’s
allies’ most important words and deeds, beginning on Sept. 22, 1862.

On birthright citizenship, we can thus follow Lincoln, or we can
follow Trump. But we cannot follow both, because Trump is trying to
undo precisely what Lincoln and his allies did, beginning eight score
and three years ago.

_Akhil Reed Amar teaches constitutional law at Yale and is the author
of the newly-published __Born Equal: Remaking America’s
Constitution, 1840-1920_
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* Emancipation Proclamation
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* birthright citizenship
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* Supreme Court
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* 13th amendment
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