The Volokh Conspiracy

President Trump's executive order adopting a narrow understanding of birthright citizenship in order to exclude the American-born children of unauthorized immigrants and temporary visitors has rekindled a constitutional debate that had mostly been put to bed (my own dissertation advisor was among the earliest scholarly advocates of this narrow understanding). Co-blogger Randy Barnett and his co-author Ilan Wurman have been particularly notable in providing new legal rationales for the administration's position, though they are not alone in doing so.

The first line of the Fourteenth Amendment specifies that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside." That is to say, children born in the United States are citizens by right of birth. Or as I title my piece, they are citizens "by birth alone" (borrowing a phrase from a congressional critic of the proposed amendment who thought this was a bad idea). The text builds on an English and American common law tradition, while adding some distinctive language of its own. Both require some unpacking in order to fully understand them.

I have now posted a draft of a new paper on the original meaning of the Fourteenth Amendment's citizenship clause and birthright citizenship in the United States. The paper reaffirms the traditional view that the children born on American soil to alien parents are American citizens except in very narrow circumstances, and that those circumstances would not extend to include the children of illegal aliens. The paper focuses specifically on the common law background to the Fourteenth Amendment debates, the specific political and legal rationale for including this language in the Fourteenth Amendment, and the original meaning of the "subject to the jurisdiction" language. It explains why some particularly notable revisionist accounts of birthright citizenship are wrong as a matter of original meaning.

It is worth noting that there are two important issues with any discussion of the original meaning of the Fourteenth Amendment in this context. There is a question of what principle or rule the Fourteenth Amendment embodies, and then there is a separate question of how that rule should be applied in present circumstances. The drafters of the Fourteenth Amendment were not concerned with temporary visitors or undocumented aliens. Those were not pressing concerns for them, and the modern legal regime of border restrictions did not yet exist. There were no considered, specific original intentions regarding the cases at issue in the Trump executive order and how their principles should be applied to such cases.

An originalist seeking to apply the Fourteenth Amendment to these modern cases must first get the original meaning of the text and its principles right, and then must separately consider how that principle might apply to current circumstances. A non-originalist might not care what the original meaning is, and a living constitutionalist might be willing to depart from known original principles in order to reach a preferred outcome in modern cases. There are further questions about whether a president could unilaterally alter the traditional rule regarding birthright citizenship or whether Congress could do so through its Section V authority.

My paper is not concerned with most of those issues. I just try to get the original meaning of the principles embodied in the text correct since I believe that there are some who have claimed an originalist mantle for an incorrect understanding of those governing principles. In this paper I have nothing to say about any non-originalist moves one might want to make. There are also some tangential concerns that might be relevant to a full originalist analysis to which I might return at some future date, but the paper focuses on what I take to be the core concerns about the original meaning of the idea of birthright citizenship entrenched in the Fourteenth Amendment.

From the conclusion:

Children born under the protection of American law are citizens by virtue of the Fourteenth Amendment, as they were citizens by virtue of the longstanding common-law principles that the Fourteenth Amendment recognized and declared. Aliens within the territory of the United States are subject to and under the protection of American law except in the extraordinary circumstances in which American law cannot reach them or is withheld from them. Unauthorized aliens are not in such an extraordinary circumstance, and their newborn children are certainly not so. Unauthorized aliens within the territory of the United States are subject to the municipal law of the United States – including the law of deportation and removal – and while tolerated within the territory are subject to the protection of that law.

The United States, like any sovereign nation, may choose to discourage or minimize immigration or the presence of aliens within its territory. In addition, it may take steps through public policy to limit the set of people who can naturalize into American citizenship and can take actions to minimize the possibility that aliens will give birth within the United States. Such policy choices may be wise or unwise, difficult or easy to effectuate, but they are available choices within the constitutional order.

The Fourteenth Amendment cut off one particular policy choice, and it was thought necessary to entrench the common-law rule into constitutional text precisely because the desirability of that policy choice had in the mid-nineteenth century become increasingly contested. Chief Justice Taney's opinion in Dred Scott reflected the emerging view of the slave states that the recognition of the citizenship of those born within the country should be dependent on a political assessment of whether some categories of people born within the country were politically desirable and truly deserved to be members of the "governing population." Legislatures should, in that view, be able to determine that some natural-born inhabitants of the country could not be citizens. The Reconstruction Congress decisively and purposefully rejected that emerging view of the law of American citizenship. It left open the question of what privileges and immunities might be entailed by citizenship, but it slammed the door on the idea that the qualifications for natural-born citizenship could be determined by legislatures. That liberal rule of birthright citizenship was controversial in its day, and it has been controversial since, but it is the nature of constitutional entrenchment that subsequent controversy does not alter the original meaning of the rule.

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.

Read the whole thing here.