88 Problems for Kurt Lash

Evan Bernick's first in a series of guest-blogging post: Part I of a critique of an important defense of the constitutionality of Donald Trump's executive order on birthright citizenship.

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On February 24, 2025, Kurt Lash posted 8 pages on SSRN. It was an introduction to a work-in-progress about the original public meaning of the Citizenship Clause. Lash stated his intention to challenge a scholarly consensus which spans the ideological and methodological spectrum, asserting that "children born in the United States to noncitizen parents who intentionally refuse to comply with the legal requirements for entry into United States" are not constitutionally entitled to citizenship. He gave assurances that although the paper was still in production, it would be "written with all deliberate speed."

We now have 80 more pages. Lash has described the resulting 88 as a "completed article." I expect Lash's paper to be the leading academic defense of the constitutional position articulated in President Trump's January 20, 2025 executive order, "Protecting the Meaning and Value of American Citizenship" ("EO"). The EO purports to end birthright citizenship for the children of people who have entered the country unlawfully ("unlawful entrants"), as well as the children of temporary visitors. Lash's status as one of the leading Fourteenth Amendment scholars in the country compels careful attention to his arguments.

What follows will be overwhelmingly critical. But I want to begin by giving credit where it is due. Lash prudently distances himself from two other kinds of pro-EO arguments that have been advanced in recent months and which I will engage in subsequent posts. The first argument turns on a supposed requirement that the parents of birthright citizens be "domiciled" in the United States. The second turns on a claimed need for reciprocal consent on the part of the parents and the polity: The parents, to allegiance to the sovereign; the sovereign, to the protection of the parents.

Lash acknowledges that requiring reciprocal consent "would seem to exclude children of families kidnapped into slavery and smuggled into the United States in violation of bans on the international slave trade." I agree, and I believe that the requirement should be rejected for that reason alone. Lash allows that it is "possible" that parental domicile is required, but he does not commit to this claim. I think it apparent that there is no domicile requirement and that even if there were, it would not exclude the children of unlawful entrants. Still, I appreciate Lash's careful hedging in the face of what he takes to be "mixed" evidence.

If only this care were evident throughout. Overall, Lash's draft is shockingly unpersuasive, given the reputation for rigor and attention to detail that Lash has earned through prior Fourteenth Amendment scholarship. I am not sure why he decided to post it in its current state, but I mean to show that this decision was unwise.

Problems With Allegiance

Lash's core thesis is admirably straightforward. The Citizenship Clause establishes a strong presumption that any person born within the United States is a citizen of the United States. That presumption cannot be overcome by a child's race, a lack of reciprocal parent-polity consent, or even a parent's criminal conviction. It can, however, be overcome by a demonstration that the child's parent lacks sufficient allegiance to the United States. Parental allegiance determines the child's entitlement to birthright citizenship.

Most scholars of the Citizenship Clause agree that whether one is "subject to the jurisdiction of the United States" is somehow related to one's allegiance to the United States. The conventional wisdom holds that allegiance in the sense meant by Lyman Trumbull, Jacob Howard, and other leading Reconstruction Framers who used the term was a duty imposed by a sovereign power. Whether a person owed allegiance turned on the power that the state was entitled to exercise over them because (in political theory, anyway) it was offering protection for their natural rights. Roughly, if you're protected by the lawmaking, adjudicatory, and enforcement powers of the United States in the ordinary course of things, you're obligated to comply with those powers.

Lash disagrees. He asserts that allegiance "refers to one's loyalty to, or fidelity towards, a sovereign, in return for which the sovereign provides protection." Loyalty to the United States is presumed, but if there is no loyalty, there can be no allegiance. And again, Lash claims that the allegiance of parents is determinative of a child's citizenship status.

All the evidence Lash needs to see why what's wrong with his loyalty-based account is right in front of him, in his own sources. One of the starkest examples is James Kent's Commentaries on American Law, which Lash traces through several editions leading up to the ratification of the Fourteenth Amendment.

Lash observes that Kent insisted upon birth within US territory and within the "allegiance of the United State." But this tells us nothing about what allegiance means. The 1848 edition, cited by Lash for the latter language, asserts that "[t]his is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent." This language appears in all subsequent editions through the ratification of the Fourteenth Amendment.

Lash does not deal convincingly with this language, which is in pronounced tension with his account of allegiance. First, he says it's "not clear" whether Kent wrote it, since he was working on the 1848 edition just before he died. Second, Lash says that it summarizes a decision that was "not representative of a consensus understanding" of its subject matter at the time of the Fourteenth Amendment's framing and ratification. But Kent's death is irrelevant absent evidence that whether Kent or his son wrote it somehow affected its reception. And the second claim is unsubstantiated, resting on at least one premise that is outright false.

The 1848 language summarizes the holding of Lynch v. Clarke, decided in 1844. This appears to be the only antebellum case which adjudicated the citizenship of a child born in the United States to foreign nationals who were temporarily visiting the country. In it, Vice-Chancellor Sandford of the New York Court of Chancery determined that Julia Lynch, a child born in New York of Irish parents, was a citizen of the United States. Sandford described a common-law rule which he asserted "prevailed and was the law … in all the states" and treated "every person born within the dominions and allegiance of the United States, whatever were the situation of his parents" as a "natural born citizen."

Lynch was widely reported as an important decision, cited by Lincoln's Attorney General Edward Bates (twice), and invoked by a leading Republican framer, Ohio Representative William Lawrence, during debate over the Citizenship Clause. Still, Lash tries to cast doubt upon its relevance to the Citizenship Clause. He reports that "as far as I [Lash] can tell" no newspapers "report[ed] Lawrence's attribution."

In fact, several Ohio papers printed Lawrence's remarks. They reported his citation to Lynch; Lawrence's statement that the Citizenship Clause "is only declaratory of what the law is without it"; and his claim that Lynch held that "children born here are citizens without any regard to the political condition or allegiance of their parents." What is striking about Lash's error is how easily I found these papers. "Great case" and "lynch" generated the first, and "political condition or allegiance" the others.

It's also hard to understand why Lash omitted Sandford's extended discussion of one of the few exceptions to birthright citizenship recognized by any antebellum court. This exception allowed people who were loyal to Britain during the Revolutionary War to elect to remain British subjects and thereby exclude their children from U.S. citizenship. Indeed, counsel in Lynch contended for a broadly applicable requirement of parental allegiance, citing the election exception.

Vice-Chancellor Sandford rejected this argument. He wrote that cases involving the "state of allegiance produced by the Revolution" were "anomalous" and could not "with propriety be deemed authorities against well established principles, as applicable to the ordinary questions of alienage and allegiance." Lash omits this discussion entirely, even though it is highly relevant to his own claim that parental allegiance was well-established in antebellum law. Ultimately, we are left not only with a paucity of evidence supporting Lash's concept of allegiance but questions about Lash's reliability as narrator.

Problems With Abolition

Concerns about Lash's reliability are exacerbated by his neglect of abolitionist contributions to the antebellum legal and political landscape. The word "abolitionist" appears once in Lash's essay, and he cites one abolitionist source—what Lash refers to as an 1859 "declaration" by the American Anti-Slavery Society that "citizenship, as the term is used in the Constitution of the United States, is the inevitable consequence of birth and allegiance."

First, it's not a declaration—it's a summary of an opinion given by the Supreme Court of Maine in response to a legislative inquiry about the right of Black people to vote. Second, it's unhelpful to Lash except on the assumption that allegiance means what he thinks it means. In context, the summary is solely concerned with denying that birthright citizenship is "dependent on race or color."

So, what did Lash miss? Despite acknowledging comments by, and occasionally citing, Gerard Magliocca, Lash does not engage Magliocca's pathbreaking work on the development of abolitionist support for Tribal sovereignty. This solidarity, forged in the wake of the genocidal removal of the Cherokee, Muscogee (Creek), Choctaw, Chickasaw, and Seminole Nations from their ancestral lands, shaped Republican support for Native freedom and Republican understanding of Indian law circa 1868, and it informed their decision not to impose birthright citizenship on citizens of Native nations. Republicans spoke of Worcester v. Georgia as the "law of the land" long after the Supreme Court had retreated from Worcester's premise of territory-centered Tribal sovereignty. Tellingly, Lash cites United States v. Rogers, a notoriously racist and anti-Tribal decision written by the author of Dred Scott, as evidence of the state of antebellum law. As Indian law scholar Bethany Berger has shown, this is precisely the kind of antebellum law that Republicans rejected.

Comparably problematic is Lash's omission of the work of Amanda Frost, who has documented how abolitionist struggles shaped an understanding of citizenship that placed little significance on the legality of border crossing. What Frost terms "birthright freedom" was established through legislation and litigation, not only in northern states and in territories governed by the Northwest Ordinance but in a few courts in enslaving states. It entailed that all children born within the borders of free states were automatically free, regardless of the status of their parents. Indeed, the fact that enslaved parents had broken the law by fleeing across state lines did not affect the child's entitlement to freedom, even as the child's mother faced removal. Republicans framed the Citizenship Clause "against a backdrop of antebellum legal rules in which birth within borders granted new status and rights of membership."

I do not mean to suggest that Lash deliberately disregarded abolitionist history or Citizenship Clause scholarship which investigates it in great detail. I do mean to assert that Lash fails to confront scholarship that either contradicts or challenges his account of the Citizenship Clause—including cutting-edge originalist scholarship—or engage scholars from whom he might have learned. He cites Michael Ramsey's authoritative 2020 pro-birthright article but his most substantial engagement with it comes in the form of spotlighting a concession in Lash's favor. He cites Mark Shawhan's 10-page student comment suggesting a possible domicile requirement but not Shawhan's full-length article advancing an original-public-meaning case for expansive birthright citizenship without any such requirement. Lash thanks and cites John Eastman, the disgraced and disbarred architect of a scheme to overturn the 2020 election who has a track record of misrepresentation concerning birthright citizenship. But he doesn't discuss the work of Bethany Berger, who has written extensively on the intersection between Indian law and the Citizenship Clause and has never tried to sabotage the constitutional order.

Problems with "Prima Facie"

Finally, Lash's treatment of the foundational source upon which he relies for the concept of "prima facie citizenship" is unsatisfactory. There is no gainsaying the all-things-considered importance of Lincoln Attorney General Edward Bates's 1862 opinion on citizenship, particularly with respect to abolitionist struggles. And Lash is right to underscore its presence in debates over the Civil Rights Act of 1866, during which Iowa Representative James Wilson praised its "careful and painstaking examination" of Black citizenship and its affirmation that a "free man of color … if born in the United States, is a citizen of the United States." Yet he leaves out and underplays crucial components of Bates's opinion.

Lash briefly discusses an 1821 opinion by James Madison's Attorney General William Wirt in which Wirt denied the citizenship of free people of color in Virginia. Lash touts this as evidence that "to some antebellum legal commentators, the wide-spread denial of equal civil rights constituted evidence that free [B]lack Americans were not 'citizens of the United States.'" But it also expresses an understanding of allegiance that Bates rejected. Indeed, Bates protested that he could scarcely "understand" Wirt's argument that free Black allegiance to Virginia must follow a consensual oath because "if it be true that the oath of allegiance must either create or precede citizenship, then it follows, of necessity, that there can be no natural-born citizens, as the Constitution affirms, because the child must be born before it can take the oath."

Lash does not inform readers about Bates's emphatic rejection of Wirt's account of allegiance. More, he fails to note about Bates's insistence that citizenship "is as original in the child as it was in his parents …. always either born with him or given to him directly by law," even though scholars like Garrett Epps and Michael Shawhan have centered it as evidence of broad birthright citizenship.

What little of Bates's reasoning that Lash does engage does not support his thesis. Bates identifies only one exception to the rule of birthright citizenship beyond the no-longer-relevant exclusions for slavery, color, and race. This is "the small and admitted class of the natural born composed of the children of foreign ministers and the like." Lash seizes on "and the like" and infers that Bates did not mean to be exhaustive. Still, this language goes nowhere near the articulation of a general principle according to which executives in 2025 might be authorized to create new exclusions covering countless children. The limited nature of the one "small … class" of children excepted Bates is yet another unacknowledged problem for Lash.

I'll be blunt: I don't think Lash's thesis can survive his failure to demonstrate the centrality of his concept of allegiance to antebellum law and political practice—at least, not any law or practice that Republicans would have wanted to preserve. But there is much more to say about Lash's draft—in particular, about his treatment of Indian law and his effort to analogize Tribal citizens to unlawful entrants. To preview: the analogy fails, owing to the profound differences between the former and the latter. Lash missed a lot, in ways that will hopefully be instructive to any who venture unaided well beyond the borders of their expertise.