Birthright Citizenship and the Politics of Constitutional Law (Part II)

Guest Blogger

Pranjal Drall and Samuel Moyn

The obscure prehistory of the campaign against birthright citizenship by itself suggests that the dynamics of credible legal interpretation are political in nature.

The revisionist case started with Peter Schuck and Rogers Smith, Yale professors who published their book Citizenship Without Consent in 1985, contending that the Fourteenth Amendment’s phrase “subject to the jurisdiction thereof” left room for Congress to decide whether the children of unauthorized immigrants are constitutionally guaranteed birthright citizenship. The book was widely ridiculed, rejected by Congress, and dismissed by the Office of Legal Counsel.

For three decades, the same basic legal argument failed to gain traction because no political coalition existed to carry it forward. White supremacists Wayne Lutton and John Tanton used the Schuck and Smith book as evidence that scholarly opinion supported overturning birthright citizenship without a constitutional amendment. The Social Contract, a magazine run by Lutton, published several articles pushing the argument during the 1990s. Rep. Bilbray of California, who would later co-chair the Federation for American Immigration Reform (FAIR), introduced a bill in 1995. The House Immigration Reform Caucus was established in 1999 and had 11 members. By 2005, membership had grown to 95 members but it was still unsuccessful in trying to force a vote on legislation to revoke birthright citizenship.

Although a few lonely stalwarts kept interpretive history alive on the margins, there was no institutional infrastructure or elite political constituency to convert that demand into a credible constitutional claim. John Eastman, who later led the legal effort to overturn the 2020 election, kept building the academic case alongside Edward Erler. They pushed the argument—that the Citizenship Clause required “complete” political allegiance, not mere territorial presence—in law reviews, Heritage Foundation white papers, Federalist Society debates, and in op-eds. Eastman even brought this argument to the Supreme Court in Hamdi v. Rumsfeld in 2004. Yet Justice Scalia disposed of it in passing, calling Yaser Hamdi, born in Louisiana to parents with temporary visas and later captured fighting against the United States in Afghanistan, “a presumed American citizen.” The issue was still live enough that Senator Schumer pressed Justice Alito on the Citizenship Clause during his 2006 confirmation hearing. Rep. Nathan Deal introduced a bill in 2009 that attracted 95 co-sponsors. In 2011, Republican state lawmakers in Arizona, Oklahoma, Georgia, and Pennsylvania introduced bills designed as test cases for the Supreme Court. But these efforts did not materialize and to our knowledge not a single bill was actually voted on.

For a long time, then, Cristina Rodríguez, writing in 2009, was right to call the efforts “political non-starters, in large part because of the widespread view that the Supreme Court would strike down any such legislation as unconstitutional.” Prominent right wingers agreed. Then Solicitor General of Texas, current Fifth Circuit judge James Ho wrote in 2006 that birthright citizenship “is protected no less for children of undocumented persons than for descendants of Mayflower passengers.” Linda Chavez, Reagan cabinet member and political commentator, warned that conservatives were “becoming so blinded, indeed, unhinged from principle, by their animus to illegal immigration that it distorts their reading of the Constitution.”

Then Donald Trump and his new political coalition on the right began to dawn. He floated the idea of overturning Birthright Citizenship in 2015 and again in 2018 but this was met with swift backlash from elites. Paul Ryan said “you obviously cannot do that.” Akhil Amar and Steven Calabresi wrote that such an order would be “unanimously laughed out of court.” The proposal to erode birthright citizenship had unprecedented support, but the Republican institutional establishment was not yet willing to back the move in part because Trumpism remained controversial within his own party.

Trump’s victory in 2024 lifted these constraints and cemented greater viability of the nativist right’s proposal to reimagine citizenship. The rising status of Stephen Miller within Trump’s orbit led to the issuance of Executive Order 14160 on the first day of his second term. The order directed the executive branch to stop recognizing the citizenship of children born on U.S. soil to undocumented parents and parents on temporary visas. A week later, Randy Barnett, one of the architects of the challenge to the Affordable Care Act, and Ilan Wurman published a New York Times op-ed titled “Trump Might Have a Case on Birthright Citizenship.” Its appearance was also a sign that the challenge had moved from being an issue confined to the margins and the marginal to reaching the Times opinion page, endorsed by reputable law professors. 

At the same time, a new wave of revisionist scholarship emerged. Ilan Wurman, a new originalist voice on the make, leaned into the old proposition that citizenship turns on a reciprocal relationship of allegiance and protection. An older and well-respected hand in the movement, Professor Kurt Lash, used an 1862 opinion by Attorney General Bates to argue birth created only a rebuttable presumption of citizenship. Samuel Estreicher and Rudra Reddy contended that Wong Kim Ark, the main precedent interpreting the Fourteenth Amendment in a strongly inclusionary direction, should be limited to children of lawful permanent residents. Meanwhile, Yaakov Roth, Jones Day partner and newly minted Assistant Attorney General, handled the lower Court litigation. His merits brief in the Fourth Circuit and elsewhere turned these disparate scholarly claims into a serious constitutional argument.

So reminiscent of the mobilization during the constitutional challenge in NFIB, that elite opening was followed by a larger institutional and popular mobilization. The Government’s losses in the lower courts were followed by widespread demand for a cert grant. Twenty-four Republican attorneys general, led by Tennessee’s Jonathan Skrmetti, filed an amicus brief supporting a cert grant. Senators Ted Cruz and Lindsey Graham filed their own and so did Republican members of the House Judiciary Committee. The Claremont Institute, led by Eastman, filed yet another. Former Attorney General and long-time Heritage Foundation leader Edwin Meese wrote one too. In a nearly perfect partisan split, the twenty-four Democratic attorneys general and 216 Congressional Democrats generated opposing briefs.

Most of these arguments are not doctrinally novel. An early review from 1986 showed that the Schuck and Smith arguments “echo, sometimes in surprising detail, those of the minority in Wong Kim Ark.” Even the Bates memo adds less than it appears as Bates himself viewed birthright citizenship as settled. Moreover, whether private letters ought to even count for original public meaning is itself contested.  

Regardless of the actual merits, the campaign to put the argument “on the wall” has already succeeded. It went from a fringe theory to a cert grant by the Supreme Court. Judge Steven Menashi of the Second Circuit wrote an introductory essay for the Harvard Journal of Law and Public Policy symposium on birthright citizenship, observing that the legal debate has now assumed “a more measured tone” and that the Solicitor General’s position raised a question the Supreme Court “has yet to address.” Just a year earlier, a federal district judge in Seattle had said he could not “remember another case” where the government’s position was so “blatantly unconstitutional.” The distance between those two characterizations is evidence that the argument has traveled into a zone of credibility between two sides and rival historiographies of the Fourteenth Amendment.

The response of the opponents of the Executive Order, especially academics, has fallen into two broad camps, though the line between them did not hold for long. One includes Akhil Amar, Keith Whittington, leading professional historians, and others who fight back in ordinary scholarly terms. They treat the revisionist interpretation of the Fourteenth Amendment as an ordinary dispute about the original meaning and resolve to answer it with better history and better originalism. They reconstruct the drafting history of Section One, trace the meaning of “subject to the jurisdiction thereof” through the 1866 Civil Rights Act and the Senate debates, and argue that the government’s reading in Trump v. Barbara fails from the perspective of text and history. For these scholars, their professional commitments mattered as much as their politics. Most of them were either professional believers in “originalism” or, as historians, committed to the relevance of their knowledge of suddenly relevant corners of the national past. Both stances invited them to live a current political struggle as a star-crossed quest for an apolitical and determinate answer about how the past bears on the present.

This response also sometimes depended on the view that, as Professor Alan Rozenshtein articulated it, “Academics need to be given the space to pursue their ideas in good faith, wherever they lead.” He adds that “once we start taking entire arguments off the board because of their consequences, we might as well give up the academic enterprise altogether.” That view gives priority to the norm of open inquiry, even under conditions of intense political conflict. It also reflects a familiar self-understanding within the academy: scholars should test arguments and not suppress them in advance because their downstream use may be ugly or dangerous. Rozenshtein does concede that legal scholarship might have an unusually direct effect on law and politics. Even so, his basic commitment is that the burden is on those who would depart from ordinary scholarly openness. For this crew, it would be crass and unintellectual—not something acceptable in the give-and-take of good faith discourse—to regard history or law as politics by other means.

Still, each was doing politics in some fashion. For Amar, at stake was the liberal rather than reactionary credentials of originalist methodology he has made his life’s work. Along with co-author Amad Ross, he argued that, although more than half of the amici featured originalist arguments, they failed the method: “Alas, only a few of the self-proclaimed originalist briefs epitomize the best form of originalism.” There is also, in Amar’s burning concern for this case, a touching nostalgia for a Cold War America that welcomed his parents and him, and made birthright citizenship the launchpad of the American dream. (Amar has treated the case as deeply personal from the start.) Birthright citizenship is a touchstone because it makes America great. For Whittington, meanwhile, there was an almost equally touching desire for conservative originalism not to trend reactionary, even as Never Trump conservatives have seen their party lose its mind.

In the other category, as usual, were professional historians who do not work in law schools and who like to think of themselves as avoiding “law office history” and the opportunism of ransacking the past as if it spoke clearly to current matters. In their view, this stance gives them superior access to historical truth compared to crass originalists. But just like the lawyers they look down on, they too are tempted to mistake apolitical professionalism for a guarantee of determinate results. In the Trump v. Barbara litigation, accordingly, liberal and even left historians of the United States such as Martha Jones or Kate Masur—fully aware of the malignancy of the country’s history—insist that the Black emancipation and self-emancipation that they understandably associate with the struggle for the Fourteenth Amendment can settle this case uncontroversially. (All parties, revealingly, accept the constitutional exclusion of Native peoples born on parts of U.S. territory from birthright citizenship.)

The other broad camp includes Professors Evan Bernick, Anthony Michael Kreis, Jed Shugerman, and other allied liberal and progressive critics who have more openly and self-consciously flagged that something more disturbing than a regular legal debate is happening. They object stridently and vociferously to what they see as the laundering of a political campaign to strip citizenship from children of undocumented immigrants through the forms of legal scholarship. 

In a law review essay, Bernick, Kreis and Paul Gowder called out the revisionist side for producing “ahistorical” scholarship to “seemingly give veneer of legitimacy to the Trump Administration’s view that the children of undocumented immigrants may not be American citizens.” They compared the revisionist side to Office of Legal Counsel lawyers who wrote the “torture memos” under George W. Bush and called for legal scholars to “engage in rigorous, fact-based historical analysis rather than politically motivated reinterpretations that threaten to destabilize fundamental constitutional rights.”

This camp also openly expressed anger and ridicule on social media, as if doing so could keep Pandora’s Box from opening under pressure. Kreis said there is “no legitimate argument” here, that “there is no literature,” and that “it’s dishonest to say this question is legitimately open.” Wurman’s work “sounds smart— but it’s the showmanship that obscures how utterly wrong and unprincipled his work in English history is,” he added. Similarly, Bernick commented that he had “no ideas about this that reflect well on [Wurman]” and later wrote that parts of the exchange were “unscholarly and will never be forgotten.” The point is not to single out these individual scholars, or to pick sides of this squabble. The exchange is emblematic: this camp of liberals openly treated the dispute as political and dismissed the other side with disdain, only to eventually adopt the legalist posture of engaging on the merits.

Far less defensible than the response of the first group of originalists, who do not view law as politics, was the consent of this openly political group of “originalist scholars” (as two called themselves in the title of their brief) to be drawn onto the terrain of those they initially dismissed as incompetent or ridiculous—as if there was no other choice for responding to the legal politics of their enemies. That they did so highlights, most clearly, the similarity to the response to the NFIB challenge, where liberals initially responded to the mainstreaming of the “broccoli horrible” with anger and disbelief. We all know where that led.

The two camps disagreed about whether this was ordinary scholarship or something more dangerous but both eventually ended up fighting on originalist grounds and showed little interest in moving beyond legalist arguments. The first camp did so while insisting that it is already a victory for good originalism; the spirit of Whittington’s inquiry was the same. The second camp ends up in the same place. The aforementioned law review article ultimately went on to argue that the revisionists have “abandoned the project of originalism in their interpretation of the Birthright Citizenship Clause of the Fourteenth Amendment—and have abandoned the criteria for doing originalism in a defensible way.” Bernick and Shugerman’s amicus brief upbraids the revisionists for failing to do “original public meaning” originalism correctly.

Adrian Vermeule, for his part, seized on the spectacle to critique originalism for failing to arrive at “professional consensus about the original public meaning in a case of the greatest public importance.” He urged the Court to stop chasing “originalist minutiae” and instead consider the “fundamental principles” of republican constitutionalism to repudiate birthright citizenship. Beyond a familiar critique of originalist indeterminacy, his piece was further evidence that once serious originalist scholars produce dueling histories, the revisionist position becomes a legitimate side of a genuine debate. The very act of engaging revisionists as worthy interlocutors helps convert a fringe claim into an open one. Barnett, who once vilified the abandonment of originalism on Vermeule’s part, embraced his political ally’s argument, only faulting him for not acknowledging the “obscure and laborious inquiries” of Wurman and Lash that called “into question the conventional interpretation of the letter of the law.” Without “their labors” about the original meaning of the letter of the law, he added, Vermeule’s “spirit argument doesn’t get off the ground.”

The exchange showed that achieving contestability is the goal. The revisionist account did not need to win the day; it just needs to make the old consensus look like one side of an open question. That is the story of Part II, and it is the dynamic that liberals have so far refused to confront as such.

Pranjal Drall is a J.D./Ph.D. student at Yale University. Samuel Moyn, Kent Professor of Law and History there, is author of “Gerontocracy in America: How the Old Are Hoarding Power and Wealth—and What to Do About It.”