The Trump administration is struggling to defend its executive order that purports to end birthright citizenship. Four different federal judges have now blocked the executive branch from carrying it out. The administration’s briefs to the appellate courts are threadbare at best: One of them includes only a couple of citations to precedent and legal scholarship.
Two conservative law professors are rushing to the administration’s aid. The New York Times published an op-ed by conservative legal scholars Ilan Wurman and Randy Barnett over the weekend that partially defends Trump’s executive order. They argue for a different framework for interpreting the amendment, which they describe as the “allegiance-for-protection theory.” The op-ed, much like all of the efforts to defend the executive order that preceded it, is not particularly persuasive. If anything, a review of its evidence supports birthright citizenship even more strongly. It also raises questions about the purpose of legal scholarship, especially by conservatives, in the Trump era.
The legal history of birthright citizenship is fairly straightforward, so I will recount it only briefly. In the 1857 case Dred Scott v. Sandford, the Supreme Court dismissed a freedom lawsuit by holding, among other things, that people of African descent were forever barred from American citizenship. Dred Scott is widely considered to be the worst ruling in the court’s history and a major catalyst for the Civil War four years later. During Reconstruction, Congress sought to unequivocally define American citizenship to include formerly enslaved people.
Accordingly, the Fourteenth Amendment is unambiguous on this matter: “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.” The meaning of “subject to the jurisdiction” is generally self-evident: A person is subject to the jurisdiction of the United States if they are within its borders. They fall under U.S. civil and criminal laws; they can be taxed and regulated under them; they can be sued or arrested for breaching them.
The jurisdictional exception has mainly referred to foreign diplomats and their children and, prior to 1924, to members of Native American tribes on the American frontier. The former group was not “subject to the jurisdiction” of the United States because they had diplomatic immunity and because granting American citizenship to them might interfere with foreign laws. The latter group consisted of members of sovereign political communities, even if they nominally resided in territory claimed or held by the United States. (That exception is moribund because Congress granted citizenship to all Native Americans by statute through the Indian Citizenship Act of 1924.)
In 1898, a San Francisco-born man named Wong Kim Ark tried to return to the United States after traveling overseas. Port officials denied him entry under the Chinese Exclusion Act. Wong challenged his exclusion in court by noting that he was born in California sometime in the late 1860s or early 1870s to Chinese-born parents who were not citizens. Wong argued that he was a U.S. citizen under the Fourteenth Amendment’s broad terms. The Supreme Court agreed.
As a result, for the last century or so, the prevailing legal and constitutional consensus has been that anyone born on U.S. soil automatically becomes an American citizen. Wurman and Barnett argue differently. “Many scholars take the view that ‘subject to the jurisdiction’ meant simply subject to the power of the U.S. government, its army, its courts, and its laws,” they wrote, as if that were incorrect. Instead, they argue that citizenship only applies to members of the American body politic, to people who participate in a “social compact” with the Republic and owe “allegiance” to it. In exchange for that allegiance, the state provides citizenship.
“Both the Lincoln administration and the Congress that proposed the [Fourteenth] Amendment held this allegiance-for-protection view, with this difference: In England, the allegiance expected of a subject was obedience to the sovereign monarch in return for his protection. In the American Republic, where the people are sovereign, the allegiance expected of a citizen was obedience to the laws,” they wrote.
There is a certain amount of legal legerdemain behind this framing. Wurman and Barrett lean heavily on an opinion authored by then-Attorney General Edward Bates in 1862. They quote approvingly his description of citizenship: “The Constitution uses the word ‘citizen’ only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other.” (They curiously provide no citations for their claim that the 39th Congress shared this view.)
But that excerpt is misleading in two ways. First, Bates wrote his opinion before the Civil War had ended and Reconstruction had begun, and well before the Fourteenth Amendment was drafted and ratified. As legal scholars like Jed Shugerman have already noted, Wurman and Barnett do not discuss the drafting and ratification debates surrounding the Citizenship clause at all. For those seeking to unearth the “original public meaning” of the constitutional text, this is generally considered a fatal error.
Then again, to cite those debates would also be fatal to their theory. Judge James Ho, a deeply conservative judge who currently serves on the Fifth Circuit Court of Appeals, famously wrote in 2006, before his judicial career began, that the amendment’s drafters had soundly rejected “allegiance” in favor of “jurisdiction” as the basis for citizenship. He also noted that they did not exclude citizenship for the children of “illegal aliens” because the United States did not create such a distinction until after its ratification.
Second, and perhaps just as importantly, Bates’s own opinion appears to disagree with them when read in full. He argued even in 1862 that citizenship attached at birth, and that allegiance naturally followed from it. “Our Constitution, in speaking of natural-born citizens, uses no affirmative language to make them such,” he wrote. “But only recognizes and reaffirms the universal principle, common to all nations and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.”
“If this be a true principle—and I do not doubt it—it follows that every person born in the country is, at the moment of birth, prima facie a citizen,” Bates continued, “and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the ‘natural-born’ right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.”
Other delvings into pre-1869 nationality law are just as fruitless. At one point, Wurman and Barrett point to an 1830 Supreme Court case on an inheritance dispute in New York and whether the heir, who was born in 1776 to a loyalist father, could inherit the property in question as an American citizen. The Supreme Court held that all people on U.S. soil at the moment the Continental Congress declared independence from the British Crown immediately acquired American citizenship—but that some otherwise qualified people at the time could forsake that status in favor of remaining a British subject. The heir’s father was among them.
I call it “mildly interesting” because, though historically curious, it carries no real precedential weight. A Supreme Court ruling from 1830, and its understanding of American citizenship law, does not supersede a constitutional amendment from 1869 that fundamentally rewrote it. Quite the opposite: The Fourteenth Amendment’s purpose was to not only overturn Dred Scott, the 1859 case where the high court held that people of African descent could never be American citizens, but to place questions about the bounds of American citizenship forever beyond political debate.
Having run out of material in the New World, Wurman and Barrett fall back at last to a 1608 decision from England called Calvin’s Case. The details of the case don’t really matter so I won’t bore you with them. Suffice it to say that it involves Scottish subjects who resided in England and whether they were considered subjects of the English crown when that crown was held by a Scottish king. (The Stuarts inherited the English crown from Elizabeth I and their descendants have held it ever since.) The opinion was also written by Edward Coke, one of the era’s finest jurists.
“It explained that foreigners who came in ‘amity’—friendship—gave a ‘local’ allegiance to the sovereign and an ‘obedience’ to the laws while residing in his realm such that they were entitled to the protection and benefit of those laws,” Wurman and Barrett wrote. “Their children were therefore born under the protection of the sovereign and had to, in their own turn, give allegiance to the sovereign. They were natural-born subjects even though their parents were not citizens. The decision makes clear that both the parents’ allegiance and the child’s birthplace were relevant.”
While that ruling is interesting in the context of British nationality law and the history of the Stuart era, it is more or less meaningless to modern Americans. As Ho noted 19 ago, the Citizenship clause opted for “jurisdiction” over “allegiance” in setting the framework for American citizenship. The amendment’s drafters made abundantly clear that they intended for it to be sweeping in nature and limited in exception. To argue against this consensus is not to rediscover some true history, but to invent something altogether new.
That brings us to what’s going on with conservative legal scholarship in the Trump era. Birthright citizenship is not some LSAT logic puzzle to be solved or an arcane legal debate to be won through even more esoteric citations. The nature of American citizenship is a foundational question for the republic. It is troubling to see prominent legal scholars rely on such tenuous evidence to make sweeping claims, all with a clear intent to give scholarly cover to some sought-after future pro-Trump ruling by the conservative justices.
If Wurman and Barnett’s theory were to become the law of the land, it would redefine Americans’ understanding of ourselves. The Constitution and all laws under it flow from the people, not the other way around. That is the essence of self-government. I do not think that Wurman and Barnett intend to return this country to monarchy. But their “citizenship-as-allegiance” framework, enacted by executive decree and in defiance of the prevailing law, drifts perilously close to transmuting Americans from free men and free women into subjects of a crownless king.
We’ve seen this sort of slipshod constitutional analysis before. For most of the last decade, Trump sought to end any legal effort to hold him accountable. He frequently declared that he had “absolute presidential immunity,” a concept that is found nowhere in the Constitution and would be alien to the principles and the men that crafted it. He also argued that he could not be disqualified from office for his participation in an insurrection despite the clear command of a different section of the Fourteenth Amendment.
Over time, a handful of conservative legal scholars tried to backfill Trump’s legal arguments for him, stringing together a few context-free excerpts from The Federalist Papers and a smattering of overly deferential Supreme Court precedents on the executive branch. Trump emerged from both legal disputes victorious on questions that would have been unthinkable a decade earlier. That approach to legal scholarship was distasteful when it came to somewhat abstract questions about presidential authority and the separation of powers. It is far more disturbing when done in the service of rendering millions of natural-born Americans stateless and deportable.
