The Volokh Conspiracy
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What If Congress Limited Birthright Citizenship and Nobody Noticed?
A new study further undermines revisionist claims about birthright citizenship under the Fourteenth Amendment, noting a dog that did not bark.
One of President Trump's first actions in his second term was an Executive Order purporting to limit birthright citizenship to the children of citizens and permanent residents. The Supreme Court will consider the lawfulness of this order in case to be heard this spring.
Section One of the Fourteenth Amendment provides:
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.
It is generally accepted that this language did not extend citizenship to the children of foreign diplomats and hostile armies born on American soil, as neither would be "subject to the jurisdiction" of the United States. According to the Trump Administration, this language also excludes the children of temporary visitors and those not lawfully present in the country.
The Trump Administration position is based upon a revisionist account of the Fourteenth Amendment. While some recent scholarship has raised interesting points about the contours of Section One, and perhaps raised some questions about Congress's authority to define the scope of the jurisdiction of the United States, I am more persuaded by the conventional account.
A new study creates further doubts about the revisionist account. "The Dog That Didn't Bark: Eligibility To Serve In Congress And The Original Understanding Of The Citizenship Clause" by Amanda Frost and Emily Eason, forthcoming in the Georgetown Law Journal Online, notes the conspicuous lack of any effort to enforce a more restrictive understanding of birthright citizenship after the Fourteenth Amendment was adopted. Specifically, they note that no one sought to challenge the citizenship of any member of Congress on the grounds that they lacked citizenship and were thus ineligible to serve, even though multiple members of Congress during this period were born to individuals who were neither citizens nor the equivalent of lawful permanent residents.
As noted in this Adam Liptak story about the study, there were plenty of challenges to qualifications during this period, just not on the basis that birthright citizenship required the parents to be domiciled or seeking naturalization into the U.S.
Hundreds of challenges to the qualifications of members of Congress have been filed over the years on all sorts of grounds, spiking in the years around the ratification of the 14th Amendment, a time of furious partisan division. Between just 1865 and 1871, the qualifications of 18 senators were contested. Yet there was but one challenge to a senator's qualifications involving citizenship in those years.
Several Democratic senators claimed in 1870 that their new colleague from Mississippi, Hiram Rhodes Revels, the first Black man to serve in Congress, had not been a citizen for the required nine years. They reasoned that the 14th Amendment had overturned Dred Scott, the 1857 Supreme Court decision that denied citizenship to the descendants of enslaved African Americans, just two years earlier and that therefore he would not be eligible for another seven.
That argument failed. No one thought to challenge any other members on the ground that they were born to parents who were not citizens and who had not, under the law in place at the time, filed a declaration of intent to be naturalized.
Immigrants were not eligible to be naturalized until three years after that declaration was filed and until five years after they arrived in the United States. The process was not perfectly analogous to lawful permanent residency, but it was not so very different, either.
While the failure of anyone to bring such challenges does not dispositively resolve the original public meaning of Section One, it is powerful circumstantial evidence against the claim that the Amendment sought to constrict birthright citizenship as the Trump Administration claims.
Here is the abstract of the Frost-Eason paper:
President Donald J. Trump's 2025 Executive Order restricting birthright citizenship has prompted new interest in the interpretation of the Fourteenth Amendment's Citizenship Clause. This Essay analyzes an overlooked source of the original understanding of that Clause: the meaning of "citizen" when determining whether members-elect are qualified to serve in Congress. The U.S. Constitution requires that every member of Congress be a U.S. citizen, and further provides that each House "shall be the judge" of members' qualifications. Anyone is permitted to challenge a member-elect's qualifications to serve, and hundreds of such challenges have been brought over U.S. history. Accordingly, challenges to members-elect's citizenship--as well as the absence of such challenges--shed light on the original understanding of the Citizenship Clause.
Using a variety of archival sources, we have researched the ancestry of all 584 members of the Thirty-ninth (1865-67), Fortieth (1867-69), and Forty-first (1869-71) Congresses, and found more than a dozen whose citizenship would be suspect under President Trump's interpretation of the Citizenship Clause. Yet no one questioned these members' citizenship despite the contentious political environment that inspired frequent qualifications challenges on a variety of other grounds. This dog that didn't bark provides further evidence that the Trump administration's novel interpretation of the Citizenship Clause is inconsistent with the original understanding.
We conclude with an observation based on long hours of tedious research: Determining the status of immigrants arriving in the early nineteenth century--an era with few immigration records and minimal enforcement of existing state-based restrictions on immigration--is often impossible, and always onerous. The difficulty of the task alone is evidence that no one at the time of ratification could have seriously thought that U.S. citizenship turned on such questions.
As longtime readers may recall, I think the failure of the proverbial dog to bark is often probative of the meaning of legislative language, particularly when the legislative provisions are the subject of extensive debate. So, for instance, I continue to maintain that it is probative that not a single member of Congress (nor contemporaneous commentator) ever claimed that the Affordable Care Act provided for tax credits for the purchase of health insurance on federal exchanges (the Supreme Court's decision in King v. Burwell notwithstanding). With publication of the Frost-Eason paper I look forward to a renewed consideration of whether the dog that didn't bark is relevant in statutory interpretation.
