Two conservative law professors are rushing to the administration’s aid. The New York Times published an op-ed by conservative legal scholars Ilan Wurman and Randy Barnett over the weekend that partially defends Trump’s executive order. They argue for a different framework for interpreting the amendment, which they describe as the “allegiance-for-protection theory.” The op-ed, much like all of the efforts to defend the executive order that preceded it, is not particularly persuasive. If anything, a review of its evidence supports birthright citizenship even more strongly. It also raises questions about the purpose of legal scholarship, especially by conservatives, in the Trump era.
Accordingly, the Fourteenth Amendment is unambiguous on this matter: “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.” The meaning of “subject to the jurisdiction” is generally self-evident: A person is subject to the jurisdiction of the United States if they are within its borders. They fall under U.S. civil and criminal laws; they can be taxed and regulated under them; they can be sued or arrested for breaching them.
In 1898, a San Francisco-born man named Wong Kim Ark tried to return to the United States after traveling overseas. Port officials denied him entry under the Chinese Exclusion Act. Wong challenged his exclusion in court by noting that he was born in California sometime in the late 1860s or early 1870s to Chinese-born parents who were not citizens. Wong argued that he was a U.S. citizen under the Fourteenth Amendment’s broad terms. The Supreme Court agreed.
“Both the Lincoln administration and the Congress that proposed the [Fourteenth] Amendment held this allegiance-for-protection view, with this difference: In England, the allegiance expected of a subject was obedience to the sovereign monarch in return for his protection. In the American Republic, where the people are sovereign, the allegiance expected of a citizen was obedience to the laws,” they wrote.
But that excerpt is misleading in two ways. First, Bates wrote his opinion before the Civil War had ended and Reconstruction had begun, and well before the Fourteenth Amendment was drafted and ratified. As legal scholars like Jed Shugerman have already noted, Wurman and Barnett do not discuss the drafting and ratification debates surrounding the Citizenship Clause at all. For those seeking to unearth the “original public meaning” of the constitutional text, this is generally considered a fatal error.
Second, and perhaps just as importantly, Bates’s own opinion appears to disagree with them when read in full. He argued even in 1862 that citizenship attached at birth, and that allegiance naturally followed from it. “Our Constitution, in speaking of natural-born citizens, uses no affirmative language to make them such,” he wrote. “but only recognizes and reaffirms the universal principle, common to all nations and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.”
Other delvings into pre-1869 nationality law are just as fruitless. At one point, Wurman and Barrett point to an 1830 Supreme Court case on an inheritance dispute in New York and whether the heir, who was born in 1776 to a Loyalist father, could inherit the property in question as an American citizen. The Supreme Court held that all people on U.S. soil at the moment the Continental Congress declared independence from the British crown immediately acquired American citizenship—but that some otherwise qualified people at the time could forsake that status in favor of remaining a British subject. The heir’s father was among them.
Having run out of material in the New World, Wurman and Barrett fall back at last to a 1608 decision from England called Calvin’s Case. The details of the case don’t really matter so I won’t bore you with them. Suffice it to say that it involves Scottish subjects who resided in England and whether they were considered subjects of the English crown when that crown was held by a Scottish king. (The Stuarts inherited the English crown from Elizabeth I and their descendants have held it ever since.) The opinion was also written by Edward Coke, one of the era’s finest jurists.
While that ruling is interesting in the context of British nationality law and the history of the Stuart era, it is more or less meaningless to modern Americans. As Ho noted nineteen years ago, the Citizenship Clause opted for “jurisdiction” over “allegiance” in setting the framework for American citizenship. The amendment’s drafters made abundantly clear that they intended for it to be sweeping in nature and limited in exception. To argue against this consensus is not to rediscover some true history, but to invent something altogether new.
If Wurman and Barnett’s theory were to become the law of the land, it would redefine Americans’ understanding of ourselves. The Constitution and all laws under it flow from the people, not the other way around. That is the essence of self-government. I do not think that Wurman and Barnett intend to return this country to monarchy. But their “citizenship-as-allegiance” framework, enacted by executive decree and in defiance of the prevailing law, drifts perilously close to transmuting Americans from free men and free women into subjects of a crownless king.
Over time, a handful of conservative legal scholars tried to backfill Trump’s legal arguments for him, stringing together a few context-free excerpts from the Federalist Papers and a smattering of overly deferential Supreme Court precedents on the executive branch. Trump emerged from both legal disputes victorious on questions that would have been unthinkable a decade earlier. That approach to legal scholarship was distasteful when it came to somewhat abstract questions about presidential authority and the separation of powers. It is far more disturbing when done in the service of rendering millions of natural-born Americans stateless and deportable.
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