The Volokh Conspiracy
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Birthright Citizenship - A Response to Barnett and Wurman
Their argument for denying birthright citizenship to children of undocumented immigrants born in the US has multiple weaknesses, including that it would also have denied it to former slaves.
In a recent New York Times op ed, legal scholars Randy Barnett and Ilan Wurman offer a partial defense of President Trump's executive order denying birthright citizenship to children of undocumented immigrants, and migrants in the US on temporary visas. The Citizenship Clause of the Fourteenth Amendment grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." The standard view of this provision is that it covers everyone born in the United States that is subject to US law, and thus, as the Supreme Court explained in the 1898 Wong Kim Ark case "includ[es] all children here born of resident aliens, with the exceptions or qualifications… 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." The Indians "owing direct allegiance to their several tribes" were excluded because Indian nations were distinct sovereigns exempt from many US laws. For this reason, four federal courts have ruled against Trump's order.
Barnett and Wurman argue that only people born in the United States at a time when their parents have traded "allegiance" for "protection" truly qualify as under the jurisdiction of the United States. They contend that illegal migrants haven't made any such compact with the US, and therefore don't qualify.
Barnett and Wurman cite an 1862 opinion by Attorney General Edward Bates stating that "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." Barnett and Wurman claim the Citizenship Clause is based on a social contract theory under which people enter into a "social compact" with the government, trading allegiance for the protection of the laws.
There are several flaws in Barnett and Wurman's "allegiance-for-protection" theory. The biggest is that, if consistently applied, it would undermine the central purpose the Citizenship Clause: extending citizenship to recently freed slaves and their descendants. Slaves born in the United States (and their parents, who were also usually slaves) obviously weren't part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters.
This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But the "subject to the jurisdiction" language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the child of a foreign diplomat doesn't get birthright citizenship if her parents later lose their diplomatic immunity. If being subject to US jurisdiction requires a compact trading allegiance for protection, former slaves obviously didn't qualify. Thus, the Barnett-Wurman theory would defeat the central purpose of the Citizenship Clause. That alone is reason to reject it.
Another problem with their analysis is that they rely almost exclusively on sources interpreting the nature of citizenship before enactment of the Fourteenth Amendment, such as the 1862 Bates opinion. But the whole point of the Citizenship Clause was to expand the range of people eligible for birthright citizenship, to include former slaves. Thus, we should not assume that the Citizenship Clause is limited by previous understandings.
Barnett and Wurman do not consider extensive evidence from the period during and immediately after enactment, of the kind canvassed by scholars such as Michael Ramsey in his detailed 2020 article on this subject. That evidence, as Ramsey explains, strongly supports birthright citizenship for the children of undocumented migrants.
Barnett and Wurman argue that the traditional view cannot explain seeming anomalies, such as "the status of children born to citizens residing within enemy-occupied territory, who appear to have been considered citizens if their parents remained loyal… [a]nd… the status of children born to foreigners on foreign public vessels in U.S. waters, who were not considered citizens." These aren't actually anomalies at all. As the Supreme Court ruled in 1812, foreign public vessels in US territorial waters remain under the sovereignty of their governments, and therefore are not within US jurisdiction. Citizens residing within enemy-held territory remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops (for example through prosecutions undertaken after the US recaptures the territory).
Finally, it's important to remember that, as Gabriel Chin and Paul Finkelman have shown, the freed slaves whose children were covered by the Citizenship Clause included a large population that had entered the US illegally, by virtue of being brought in after the federal government banned the slave trade in 1808. This shows that illegal entry was not considered a barrier to being under US jurisdiction.
Even if valid, the Barnett-Wurman theory only partially justifies Trump's order. That order excludes not just children of illegal entrants, but those born to migrants who entered legally on temporary visas. But their argument fails with respect to children of the undocumented, as well. At the very least, it is not strong enough to overcome decades of contrary precedent and practice, thereby subjecting hundreds of thousands of innocent children to the trauma of deportation.
