Is the Birthright Citizenship Debate Frivolous?
Photo credit: AP Photo/Ben Curtis
On the first day of his second term, President Donald Trump issued an executive order entitled Protecting the Meaning and Value of American Citizenship. The order directs federal agencies to stop granting or recognizing citizenship for children born to parents who were unlawfully or temporarily in the United States at the time of their birth, fulfilling one of the President’s key campaign promises. In essence, the order prospectively reinterprets the meaning of birthright citizenship in the United States.
Within hours, dozens of lawsuits were filed nationwide seeking to halt the order’s implementation, initiating the first major court battle of President Trump’s second term. A coalition of twenty-two Democratic-led states, the District of Columbia and the City of San Francisco filed suits in Massachusetts and Washington, seeking preliminary injunctions against the federal government. Two similar cases were brought in New Hampshire by the American Civil Liberties Union and other immigrant advocacy organizations, representing plaintiffs such as an expecting mother of Indonesian origin.
On January 23, a federal district court based in Seattle held an in-person hearing on whether it should grant the states’ motion for a temporary restraining order while the court considered their request for a preliminary injunction. After hearing oral arguments from both sides, Judge John Coughenour granted the motion.
While reading his decision from the bench, however, the judge made his views on the underlying merits of the case clear:
I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made?
He continued, “Frankly, I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind.”
In the days that followed, legal scholars weighed in on the court’s decision, commenting on both its merits and raising some procedural concerns. A post on X (formerly known as Twitter) by University of Minnesota Law Professor Ilan Wurman sparked a firestorm within legal academia on social media. Irrespective of the order’s underlying constitutionality, Wurman found it “highly embarrassing for a judge to say something so unequivocally at a preliminary stage without the slightest acknowledgement that there is an entire literature that disagrees.” He added, “Even worse, [the judge] probably doesn’t know that he just doesn’t know ... Anyway, maybe he’ll be proven right, but to think this is open and shut is plainly wrong.” Kurt Lash, a widely respected professor at the Richmond School of Law, concurred, stating that “historical scholarship on [] birthright citizenship is on-going and seriously debated,” and that “judges do neither themselves nor the judiciary any favors by engaging in performative ‘certainty.’”
Other scholars have criticized these professors’ views. Anthony Michael Kreis, a constitutional law professor at Georgia State University, emphasizes that they fail to point to a single serious work of historical scholarship since the Fourteenth Amendment’s ratification that would support the notion that the question of whether the Citizenship Clause applies to children of illegal immigrants is open for debate. As one commenter put it, “By this standard, there is still a ‘serious debate’ about Secession; and whether the 1787 Constitution, the 14th Amendment, the 19th Amendment, and the 22nd Amendment were ‘legally’ ratified. Most Federal Judges at some point get tired of nonsense.”
So, does the Citizenship Clause of the Fourteenth Amendment apply to children of parents without legal and permanent immigration status in the United States? Beyond the merits, is the debate as close as some scholars like Professors Wurman and Lash make it seem? Or is this another frivolous attempt to rewrite history?
Citizenship in the Antebellum Era
The Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution provides as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
But, as Judge James Ho of the Fifth Circuit Court of Appeals, a prominent conservative jurist from Texas, wrote in 2006, “The Citizenship Clause was no legal innovation. It simply restored the longstanding English common law doctrine.” While the U.S. Constitution referenced citizenship in establishing the requirements to be a senator or president, it did not define it. As the Congressional Research Service found, “In the absence of any statement in the Constitution or federal statutes that U.S. citizenship was acquired by right of birth in the United States, citizenship at birth generally was construed in the context of the English common law.”
The Supreme Court’s historical practice in the antebellum and postbellum periods reinforces this general principle. In 1888, the Court stated, “The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Like most of its provisions, the Constitution is a product of history.
One of the most authoritative voices on English common law was Sir William Blackstone, an 18th-century English jurist. In his influential Commentaries on the Laws of England, he wrote, “[Citizens] are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.” He later explained: “[T]he children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.”
The doctrine of jus soli — citizenship by place of birth — was initially widely embraced in the constitutional order. The 1830 Supreme Court case of Inglis v. Trustees of the Sailor’s Snug Harbor directly addressed it. The dispute arose over whether Robert Randall, a testator who left his estate to establish a harbor, was a U.S. or British citizen at the time of his death. While the central issue revolved around whether Randall’s allegiance, given his British residency, impacted his ability to convey property in the United States, the Court explored the doctrine of birthright citizenship. In affirming the validity of his will, Justice Joseph Story observed that “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”
In the M’Creery’s Lessee v. Somerville (1824), the Supreme Court implicitly recognized birthright citizenship, proceeding on the assumption that U.S.-born beneficiaries — heirs to an Irish citizen who was never naturalized — were citizens: “No question has been made as to the alienage of these lessors of the plaintiff.” Similarly, a New York state court found in Lynch v. Clarke (1844) that a girl born to Irish parents without permanent legal status was a citizen. Relying on the Anglo-American principle of jus soli, the court wrote that “by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.”
In 1862, President Abraham Lincoln’s Attorney General, Edward Bates, was asked by Secretary of State William Seward to determine “whether a child born in the United States, whose parents are aliens, who have never been naturalized, can, without naturalization, be considered a citizen of the United States.” Bates had previously concluded that the child of an American-born mother and an unnaturalized Spanish father was, in fact, an American citizen. He believed this new inquiry was indistinguishable in principle, stating,
I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship.
As an example of the common law understanding, Bates cited the Lynch case and acknowledged the rare exception for “the children of foreign ambassadors” and other foreign dignitaries. In an opinion issued the following day, he reiterated that “native-born” children of “alien parents” are “entitled to all the rights of privileges of citizenship.” He added, “If, in addition to the fact of native birth, the parents of such children have declared their intention of becoming citizens of the United States, the right of the children to be considered citizens becomes still more unquestionable.”
There is no disputing that Native Americans and enslaved people did not enjoy birthright citizenship in the antebellum era. However, it was not until the Supreme Court’s infamous 1857 decision in Dred Scott v. Sandford that the doctrine was so blatantly discarded de jure. Writing for a 6–2 majority, Chief Justice Roger Taney rejected the application of common law, declaring that Black people “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution.” The nation went on to fight a tumultuous civil war over, among others, this question.
After the Civil War, the Reconstruction Congress aimed to move beyond reliance on common law and explicitly codify jus soli in text. Our inquiry next turns to statutory text because Congress first sought to institute birthright citizenship through the Civil Rights Act of 1866 before it ultimately proposed a constitutional amendment to the states. Its first section directly overturned Dred Scott’s citizenship holding, stating “that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
The astute reader will notice that this statutory text slightly differed from its ultimate constitutional form. The jurisdictional segment uses negative language, excluding those “subject to a foreign power.” In other words, the Civil Rights Act of 1866 required that an individual owe absolutely no allegiance — and in exchange, not be subject — to another nation. By contrast, the Fourteenth Amendment's text affirmatively includes in its scope all those subject to American jurisdiction, allowing for some degree of partial foreign allegiance in potentially ambiguous cases. Chief Justice John Marshall advised in the infamous case of McCulloch v. Maryland in 1819 that, when the framers of constitutional and statutory text use different wording in different provisions, courts should assume that the variation was intentional and meaningful.
Congress held debates on the implications of such sweeping language. Senator Edgar Cowan (R-PA) rose to ask Senator Lyman Trumbull (R-IL), one of the bill’s leading sponsors, whether the citizenship section would “have the effect of naturalizing the children of Chinese and Gypsies born in this country.” Trumbull responded, “Undoubtedly.” He affirmed his belief that “all these persons born in the United States and under its authority, owing allegiance to the United States, are citizens without any act of Congress. They are native-born citizens.”
Trumbull cited the fourth article of the Articles of the Confederation, which stated: “[T]he free inhabitants of each of these states, paupers, vagabonds and fugitives from Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states.” He argued that historical discourse on citizenship had only concerned whether enslaved people were included, implicitly acknowledging that the sole non-geographic requirement for citizenship was, at minimum, partial “allegiance” to the United States — a position consistent with case law such as Inglis.
In support, he referenced a North Carolina case, State v. Manuel, wherein the judge found that
according to the laws of this State, all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native born British subjects — those born out of his allegiance were aliens.
Elevation to Constitutional Law
Initially, the House resolution that would become the Fourteenth Amendment contained no clause related to citizenship. Congress was unsure whether its statutory enactment of birthright citizenship would withstand judicial review, and so it was only six days after Senate deliberations began that Sen. Jacob Howard (R-MI) proposed adding one:
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.
However, he clarified,
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
Opponents of birthright citizenship for children of undocumented immigrants often cite this part of Howard’s statement as proof of the text’s ordinary meaning. Yet, in the ensuing Senate debate, no senator contested that the Clause extended to children of foreigners, regardless of their legal status. Instead, the conversation focused on the policy wisdom of Howard’s proposal, not its scope.
Sen. Cowan of the 39th Congress explicitly opposed on policy grounds what President Trump’s executive order now challenges: guaranteeing citizenship to children of noncitizens. He argued that a state must retain the right to determine “who should exercise political power within its boundaries.” In a series of racially bigoted remarks, Cowan objected that the Amendment deprived states of the right to “expel” individuals in the event the states were “overrun by another and a different race.” He further claimed that birthright citizenship could force states to accept the children of “man-eaters” and “cannibals” from places like Malaysia or people from societies where “theft is a virtue,” “falsehood a merit,” and “polygamy is as natural as monogamy.” More on point, Cowan questioned the virtue of citizenship for the children of immigrants who “invade [U.S.] borders,” “owe to her no allegiance,” and “settle as trespassers” without legal status. No senator argued that these hypotheticals were implausible under the proposed language.
Sen. John Conness (R-CA) then rose to respond directly to Cowan’s concerns and reiterate that the Amendment would extend birthright citizenship even to children of illegal immigrants:
The proposition before us ... relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens ... I am in favor of doing so ... We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.
Again, no senator challenged Howard, Cowan, and Conness’s interpretation of the Clause — though Cowan ultimately voted against the entire Fourteenth Amendment.
The only substantive debate concerned whether “subject to the jurisdiction of the United States” applied to Native Americans. Howard argued that tribes were historically regarded as “quasi foreign nations.” Sen. Trumbull concurred, arguing that, at the very least, tribe members did not owe “sole” allegiance to the United States. He asserted that “only those persons who come completely within our jurisdiction” — those “who are subject to our laws” — are citizens, a view unchallenged by any other senator.
Senators Reverdy Johnson (D-MD) and Thomas Hendricks (D-IN) disagreed, suggesting that previous laws had exercised jurisdiction over Native Americans. However, the Senate ultimately rejected an amendment by Sen. James Doolittle (R-WI) that would have explicitly excluded Native Americans from the Citizenship Clause. Regardless of whose interpretation was correct, any dispute over the Clause’s scope was confined to the status of Native Americans—not the children of undocumented immigrants, on which there was unanimous agreement.
Judicial Implementation
The Slaughter-House Cases of 1873 touched on the “subject to the jurisdiction” language, albeit in the context of the Privileges and Immunities Clause. One sentence might hold relevance: “The phrase, ‘subject to its jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States, born within the United States.” Because the case did not directly implicate the Citizenship Clause, this sentence is widely regarded as dictum. Just a couple of years later, the Court walked back this claim in Minor v. Happersett — though it acknowledged that there have been “doubts” about the citizenship of “children born within the jurisdiction without reference to the citizenship of their parents.” Wong Kim Ark ultimately denounced the Slaughter-House dictum twenty-five years later: “This was wholly aside from the question in judgment and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities.” In doing so, the Court invoked Chief Justice Marshall’s oft-quoted warning on dicta:
It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.
The Court actually considered the scope of the Citizenship Clause in another case nearly twenty years after the Fourteenth Amendment’s ratification. In Elk v. Wilkins, the Court assessed whether someone born a member of a Native American tribe, but who had since separated from their tribe, was a citizen. Because a Native American-born child begins their life owing “immediate allegiance” to their tribe, the Court decided, they
“are no more ‘born in the United States and subject to the jurisdiction thereof’ ... than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.”
This decision is consistent with English common law, Attorney General Bates’s opinions, and the Senate debates.
The Slaughter-House statement was wholly discarded in the only case in the one hundred and fifty years since the Citizenship Clause’s ratification to consider the children of noncitizens: United States v. Wong Kim Ark (1898). Wong was born in San Francisco to Chinese-born parents who were ineligible for naturalization. Upon returning to the United States from a visit to China, he was denied entry under the Chinese Exclusion Act. The government argued before the Supreme Court that Wong was not a citizen, despite being born in the United States, because the Citizenship Clause’s “subject to the jurisdiction” language referred only to those born within the political, not merely territorial, jurisdiction of the United States.
By a 6–2 vote, the Court sided with Wong, holding that
The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
“To hold that the Fourteenth Amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries,” Justice Horace Gray explained, “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.” In other words, the Court concluded that the Citizenship Clause applied to even the children of parents without permanent legal status. It is plausible to argue that this portion of the opinion is nonbinding dictum, as the question the case presented was limited to whether the “subject to the jurisdiction” language applied to cases where the parents did not maintain complete allegiance to the United States, even as they were legal residents under the Exclusion Acts.
However, just over a century later, the Court clarified whether illegal immigrants are covered by that jurisdictional language. In Plyler v. Doe (1982), the Court ruled that the Fourteenth Amendment’s Equal Protection Clause applied to undocumented children since they are “within [the state’s] jurisdiction.” Though the Court was divided on whether the Equal Protection Clause applied in the context of public welfare benefits, they were unanimous that undocumented immigrants fell within the scope of “subject to the jurisdiction” of the United States.
The majority found it implausible that an illegal immigrant could be subject to a state’s laws yet not subject to its jurisdiction. “Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase ‘within its jurisdiction,’” Justice William Brennan wrote. Invoking Wong Kim Ark’s reference to the Blackstonian English common law definition of citizenship, Brennan concluded that “[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” Unlike the parents, who owe temporary allegiance to a foreign nation until they enter the United States, a U.S.-born child is under the state’s jurisdiction from birth. Allegiance and protection were reciprocal. One who was entitled to the sovereign’s protection granted allegiance thereto. There was no particular order for that relationship to be achieved. It was vice versa.
The majority was unconvinced that the Fourteenth Amendment distinguished “resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful” for jurisdictional purposes. Chief Justice Warren Burger’s dissent, joined by Justices Byron White, William Rehnquist, and Sandra Day O’Connor, stated plainly that it had “no quarrel” with the majority’s threshold conclusion that noncitizens who illegally enter the United States “are indeed physically ‘within the jurisdiction’ of a state.’”
INS v. Rios-Pineda (1985) reinforced this understanding. In upholding the Board of Immigration Appeals’ discretion to deny the suspension of a deportation, the Court noted that the plaintiff’s “wife had given birth to a child, who, born in the United States, was a citizen of this country”— despite her own undocumented status. Likewise, in Hamdi v. Rumsfeld (2004), the plurality acknowledged that Hamdi, an “illegal enemy combatant,” was “[b]orn an American citizen in Louisiana.” An amicus brief by Professor John Eastman and former Attorney General Edwin Meese argued that Hamdi was not an American citizen because his parents were on temporary work visas at the time of his birth. The Court again rejected this view, though Justice Antonin Scalia, joined by Justice John Paul Stevens, referred to Hamdi as merely a “presumed citizen” in a dissent.
Judge Ho has pointed out two fatal flaws with relying on this. First, “citizenship was likely ‘presumed’ only because Hamdi might have renounced citizenship through his hostile conduct.” Indeed, Hamdi later did precisely that in a plea agreement that reserved the possibility that he had done so earlier. Second, “it is difficult ... to believe that Justice Stevens, a member of the Plyler majority,” would challenge Hamdi’s citizenship based on his parents’ legal status.
Interpreting the Citizenship Clause
Section One of the Executive Order serves as a preambulatory clause, outlining the order’s purpose. It characterizes citizenship as a “profound gift,” reflecting a misunderstanding of birthright citizenship by conflating it with naturalization. While correctly acknowledging that the Fourteenth Amendment sought to remedy Dred Scott’s denial of birthright citizenship, the order attempts to redefine its scope by specifying who does not qualify under the Amendment’s “subject to the jurisdiction thereof” requirement:
(1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Section Two, the operative clause, directs federal agencies to deny recognition of U.S. citizenship by refusing to issue or accept documents purporting to confer such status in the cases outlined in Section One. Finally, Section 2(b) clarifies that the order applies prospectively, affecting individuals born thirty days after its issuance.
As is proper, we begin with the provision’s text while considering its historical context, broader constitutional structure, and purpose. Likewise, early judicial precedent and historical implementation are vital to our inquiry.
The Citizenship Clause states that a person born in the United States is a citizen if they were “subject to the jurisdiction” of the United States at the time of their birth. Black’s Law Dictionary defines “jurisdiction” as “[a] government’s general power to exercise authority.” Thus, to be “subject to the jurisdiction” of the United States is to be under its authority — a condition that applies to most individuals within U.S. borders. There is no question that an illegal immigrant is subject to the government’s authority. To suggest otherwise would nullify dozens of statutes granting the executive branch power to detain and deport undocumented individuals. After all, what makes an immigrant “illegal” is their presence in violation of U.S. law. If aliens are not within the jurisdiction of the United States, they could break the law, then claim that the government has no jurisdiction to arrest, try and punish them.
The Clause’s text does not direct the reader to examine the status of the child’s parents; in fact, it does not mention them. The only circumstances warranting such an inquiry arise from the exceptions recognized in Wong Kim Ark, which trace back to the common law. These exceptions are rooted in the phrase “subject to the jurisdiction thereof.”
One such exception applies to children born into Native American tribes, who historically were not considered fully subject to U.S. jurisdiction. Elk reinforces this by focusing on a person’s status at birth rather than their later actions. Native Americans belonging to sovereign tribes were viewed as owing allegiance to their own nations, a position confirmed by Sen. Howard, the Citizenship Clause’s sponsor, who described tribes as “quasi foreign nations.” Because tribal members did not owe exclusive allegiance to the United States, they were not granted birthright citizenship.
While allegiance was often linked to jurisdiction in the context of tribal sovereignty, the Citizenship Clause itself did not require an individual to owe complete allegiance to the United States. In fact, Cowan complained that the Clause would extend citizenship even to those who owe their state “no allegiance,” a point that was never challenged.
A similar question arises regarding the children of undocumented immigrants. While their parents may retain some allegiance to their country of origin, Elk directs our focus to the child’s birth as the decisive moment for jurisdiction. Unlike tribal members, a child born in the United States to undocumented parents owes absolute allegiance to the United States at birth and is, therefore, entirely subject to its jurisdiction.
Why, then, are the children of foreign diplomats not considered subject to U.S. jurisdiction? The answer lies in diplomatic immunity. Foreign dignitaries and their families are not bound by U.S. law and cannot be prosecuted in U.S. courts unless their home country waives immunity. Unlike undocumented immigrants — who live under and are accountable to U.S. law — diplomats maintain exclusive allegiance to their home country, and their children inherit that status. Wong Kim Ark reaffirmed this common law principle, explicitly excluding the children of foreign diplomats because they are exempt from U.S. jurisdiction. Elk equates the children of these diplomats to the children of Native American tribes. It asserts that they are essentially not born in the United States.
If the Fourteenth Amendment’s framers had sought to exclude the children of aliens from the meaning of “subject to [U.S.] jurisdiction,” they could have used the exact language of the 1866 Civil Rights Act, which would have extended citizenship only to those “not subject to any foreign power.” To suggest that these two phrases mean the same thing would be to disregard what Chief Justice Marshall “cautioned against as long ago as McCullough v. Maryland.”
The final commonly understood exception applies to those “born of enemies within and during a hostile occupation of part of our territory.” This situation is self-explanatory: if a foreign power occupies U.S. land, it is difficult to argue that those under occupation remain subject to U.S. law.
In short, the Fourteenth Amendment must be viewed as a codification of the common law understanding of birthright citizenship. No historical evidence suggests that its framers intended a more restrictive definition of what it means to be “subject to the jurisdiction” of the United States. On the contrary, congressional debates and early judicial interpretations confirm that the common law exceptions remained intact. Moreover, the very fact that the Amendment extended birthright citizenship to formerly enslaved persons suggests that its framers envisioned a broader, not narrower, definition of citizenship. As Professor John Yoo, the former Deputy Assistant Attorney General for the Office of Legal Counsel, notes: “The Reconstruction Congress is responsible for the greatest expansion in the recognition of constitutional rights other than the First Congress, which proposed the original Bill of Rights.”
That is not to suggest that the framers of the Fourteenth Amendment anticipated extending birthright citizenship to the children of illegal immigrants — for at the time of the Citizenship Clause’s enactment, there were no significant restrictions on immigration. The United States, in effect, had open borders until the Chinese Exclusion Act, with the only restriction on the books being the 1808 ban on the transatlantic slave trade. However, this ban did little to stop illegal smuggling, as an estimated 785,000 enslaved people were illegally brought into the United States between 1808 and 1863. If birthright citizenship were denied based on parental legal status, would all of these individuals, who were illegally smuggled into the country, have been denied citizenship under the Fourteenth Amendment? Such an interpretation would be both impractical and inconsistent with the Amendment’s core purpose, which was to grant citizenship to those born on U.S. soil, particularly the formerly enslaved. Similarly, if allegiance were an independent act requisite for citizenship, the treasonous members of the Confederacy would also be denied citizenship — inconsistent with the Amendment’s implementation.
Beyond this historical inconsistency, enforcing a policy that ties citizenship to parental status would have been entirely unworkable at the time of the Amendment’s passage. There were no DNA tests, no standardized birth records, and no national identification system to track a newborn’s parentage. Immigration records were sparse or nonexistent, making it impossible to determine how a child’s parents had entered the country.
Proponents of this theory contend that the debates in Congress actually support their position, pointing to Sen. Howard’s introductory remarks. They read them as to state that birthright citizenship “will not, of course, include persons born in the United States who are foreigners, aliens.” This interpretation, however, ignores his parenthetical clarification, where he specifies that he was referring to “foreigners” and “aliens” who “belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.” Some proponents even erroneously insert an “or” into the sentence before “who belong to,” which would render the word “who” pointless. The phrase following “who” simply serves to modify the two earlier examples of exceptions.
Even if one assumes that his statement was a continuous list of exceptions, Senators Cowan and Conness’s subsequent colloquy on the wisdom of such a proposal renders that point moot. Why would Cowan object to granting citizenship to Chinese immigrants and Gypsies — and thus vote against the Amendment — if Howard had assured him that the Clause would exclude them?
To conclude that the Fourteenth Amendment’s Citizenship Clause does not extend birthright citizenship to the children of illegal immigrants is to reject the Clause’s text, historical context and purpose, the Amendment’s structure, and over a century of judicial precedent. We thus turn to whether this issue is even close and whether any opposing arguments should be seriously considered.
Frivolity of the Arguments
Certain cases that come before the Court draw extensive commentary from legal scholars. Often, there is a clear ideological divide over which side, influenced in part by judicial philosophy and methods of legal interpretation — originalism, textualism, purposivism, and pragmatism.
Most scholars will concede, however, that the question at issue is a close call. They may have a preferred outcome, whether driven by partisan considerations or a good-faith interpretation of the relevant law. But they will generally acknowledge that opposing arguments hold some degree of merit — how much is debatable. After all, such cases would not have reached the Supreme Court if the answer were obvious and simple.
Rarely does one side argue that the opposing position is entirely baseless and merits no time nor consideration. Many believed that may have been the case with the issue of presidential criminal immunity — that the Special Counsel’s office would ultimately win in the Supreme Court by a landslide because the answer was so obvious as to require little examination of the relevant factors favoring a strong executive. While I believed there was a clear winner on that question, I also recognized that it necessitated a thorough consideration of applicable precedents and the separation of power.
The question of whether birthright citizenship extends to children of undocumented immigrants has now become another such example where scholars have gone beyond simple disagreements. Supporters of birthright citizenship are essentially calling the opposing argument “ludicrous.”
Based on a careful examination of the historical record, the only somewhat contestable debate is whether the Slaughter-House Cases’ line on who is subject to U.S. jurisdiction is dictum. The fact that the Slaughter-House Court evaluated the Citizenship Clause in a Privileges and Immunities context is the sole historical development that has rendered the overarching question of birthright citizenship potentially debatable. In Chief Justice Marshall’s maxim on judicial activism and overreach, he specified that if a court exceeds the circumstances of a case, its decisions should nonetheless be “respected” by future generations. Nevertheless, does the debate over whether the line is dictum indicate the existence of a broader controversy?
Proponents of this novel interpretation disregard the entirety of the historical record cited above. They selectively invoke language from one judicial opinion while ignoring the well-researched analysis of another within the same breath. They insert words into the legislative record. They advocate for an ahistorical and narrow-sighted view of the Clause, reducing it to a mere codification of a two-year-old statute rather than, as Sen. Howard described, an affirmation of the principles of “natural law” dating back to the Stuart monarchs of England centuries earlier. Since the signing of the executive order, some prominent legal scholars have purported to identify a body of academic literature supporting their argument. Yet, when pressed, they have been unable to cite any such scholarship — because none exists. Now that they have been further challenged, advocates have resorted to creating their own work, just to have it rebuked. These hastily-produced ad hoc articles are devoid of rigorous historical analysis and their authors often lack the relevant expertise and knowledge, especially in the field of 17th-century English political development.
These efforts are not merely frivolous — they are dangerous. By manufacturing a post hoc body of scholarship to justify a predetermined conclusion, these scholars are providing a future judge with the veneer of legal and academic legitimacy to issue a radical holding. When challenged, the judge will be able to point to this artificially constructed record as if it were the product of rigorous historical and legal analysis, when in reality, it is nothing more than a facade built after the issue has become politically relevant.
And so, is this a close call? No, I do not believe the Supreme Court would find this to be a difficult decision if the case reaches its docket — particularly if the Court approaches the issue through an originalist lens, as it often claims to do. Judge Coughenour’s strong reaction, even at a preliminary stage of the case, was entirely reasonable given the longstanding interpretation of the Citizenship Clause for over a century. In evaluating the request for a temporary restraining order, he necessarily had to consider the case’s underlying merits. This is not to suggest that the Supreme Court should forgo a careful examination of the historical record outlined above, should the case reach its docket.
The government’s case, however, stops just short of arguing that the Earth is the center of the solar system or that the sun sets in the west and rises in the east. Such a position would not ordinarily merit serious consideration or response. Yet, because this facade of scholarly legitimacy has been hastily assembled to justify this revisionist argument, it must now be dismantled — piece by piece, blow by blow — until no pretense of credibility remains. Otherwise, we risk resigning ourselves to a pre-Fourteenth Amendment world with citizenship bound by the same narrow and exclusionary constraints established by Dred Scott.