Prof. Kurt Lash Responds to Keith Whittington on Birthright Citizenship

Keith posted yesterday "On the Original Meaning of Birthright Citizenship," discussing his new article on the subject; here's the abstract of the article:

The citizenship clause of the Fourteenth Amendment entrenched birthright citizenship into the Constitution. Building on a recent revisionist scholarly literature, President Trump's executive orders have asserted that the scope of birthright citizenship should be understood to exclude children born on American soil to parents who are unauthorized to be in the country or authorized to be in the country for only a limited purpose and period. This asserted limitation of birthright citizenship is at odds with the original meaning of the Fourteenth Amendment and the antecedent common-law rule of nativity that the language of the Fourteenth Amendment embodied and declared.

And here's the closing paragraph of his post:

Sometimes the conventional wisdom is simply correct and efforts at revisionist thinking are misguided. To my mind, this is such a case. A living constitutionalist could readily produce a rationale for the Trump administration's position, but I do not think there is a serious originalist case to be made for it.

Prof. Kurt Lash, who has taken a different view, passed along this response, which I'm glad to publish:

Birthright Citizenship: A short assignment for the serious.

Keith Whittington has posted a new paper on the 14thA Citizenship Clause. Although he thinks there is no "serious original case" for the "revisionist" view adopted by the Trump administration, he does not engage the evidence and arguments that I make in my paper forthcoming in the Notre Dame Law Review. That evidence sharply contradicts his account.

Whittington's approach has become standard among those opposing Trump's EO. These scholars argue that the meaning of the citizenship clause is found in antebellum common law and that the framing and ratification debates should be understood in a manner consistent with what they stipulate was the common law approach. My approach is the opposite. I argue that the original understanding of the citizenship clause is clearly articulated in the framing and ratification debates, that it reflected a view not reducible to older common law approaches, and that they understood the text as imposing the dual conditions of birthplace and allegiance.

Although the issue is bouncing around the lower courts, no court has "seriously" engaged recent originalist scholarship on the framing and ratification debates. That will change, I believe, in the coming months. In the meantime, I plan on staying in the game and defending my claim that Trumbull meant exactly what he said when he declared "what do we mean by 'subject to the jurisdiction of the United States?' Not owing allegiance to anybody else. That is what it means."

Critics of the allegiance reading insist that Trumbull's statement is an outlier, that his reference to "allegiance" really meant something other than "allegiance," and that "revisionist" reliance on this statement amounts to cherry-picking. To the degree that these claims are meant to dissuade you from actually reading the evidence, they are a transparent dodge. But the proof is in the pudding. Check the sources!

Hesitant to the read the thousands of pages that I and others are writing on this subject? Fair enough. There is a much faster way to get up to speed on the issue.

As the months go by, I predict this debate will increasingly focus on roughly seven pages in the Congressional Globe. On May 30, the Senate publicly debated a proposed addition of a citizenship clause to the joint committee's draft of the Fourteenth Amendment. In this debate, you will find Howard's opening statement, questions directed to Trumbull (reflecting his prior work on the citizenship clause of the Civil Rights Bill), pushback from other senators, and Trumbull's responses and clarifications. The debate (reported in newspapers) includes analysis of the provision's impact on Chinese immigrants, so-called "Gypsies," members of Indian tribes under Tribal government, and tribal members who refused to live under any treaty-recognized tribal government. The pages are found at Cong. Globe, 39th Cong., 1st Sess., 2890 to 2897.

Not too taxing an assignment. I believe those seriously trying to follow the scholarly debate will find them an eye opener. But, wait, don't stop reading quite yet! Just a bit more. You are now in position to compare how Whittington and I differ in our reading of these critical pages. Whittington presents his analysis at pp. 30-33 of his work. My reading can be found in my article at pp. 50-57. My evidence and arguments, by the by, have been posted at SSRN for months.

Finished? Great. Now let the serious originalist debate begin.