Birthright Citizenship and Apophatic Interpretation

Guest Blogger

Carolina Núñez and Lucy Williams

For the last 15 months, the entire legal academy has fixated on five words: “subject to the jurisdiction thereof.”  These words are the only limitation in the Fourteenth Amendment’s broad grant of citizenship to “[a]ll persons born or naturalized in the United States.”[1]  They are also the words that the Trump administration seized upon in its executive order denying citizenship to children of undocumented immigrants.  Since that EO issued, legal scholars have expended considerable effort debating what, exactly, “subject to the jurisdiction” requires.  These debates have been so exhaustive (and so exhausting) that when the oral arguments in Trump v. Barbara finally rolled around, it was hard to imagine that those arguments might produce anything new. 

And for the most part, they didn’t.  The oral arguments largely tracked the parties’ briefs, which themselves draw heavily on the academic literature.  Because of this, the arguments were relatively predictable, exploring the same ideas and questions that legal academics have been feuding about since Trump’s second inauguration.  The Court asked, and the advocates answered, familiar questions about allegiance, domicile, original public meaning, and precedent.  For initiated listeners, not much was new. 

Near the end of the argument, though, counsel for the respondents Cecillia Wang said something that did feel new.  When asked whether there is “any way that there might be a different answer [to the question of birthright citizenship] with respect to the children of people who are here unlawfully,”[2] Ms. Wang answered, “[The framers of the Fourteenth Amendment] had an intuition that was consistent with the founding aversion to inherited rights and disabilities.”[3]  Though she did not elaborate further, she seemed to be suggesting something novel: The government’s position is untenable not only because it is inconsistent with the Fourteenth Amendment’s text or history or original public meaning, but also because it embraces something (inherited civic status) that the Fourteenth Amendment rejects. 

Ms. Wang’s comment echoes an argument we have made in our working paper “Apophatic Inquiry, Birthright Citizenship, and the Anti-Aristocratic Constitution.”   Our central claim is that constitutional interpreters ought to consider not only what the Constitution affirmatively says, but also the things it omits, rejects, and negates.  This approach, which we call “apophatic interpretation,” is modeled after apophatic theology, which seeks understanding through negation—by focusing on what something is not rather than what it is.  It is not, itself, a freestanding method of constitutional interpretation, and it does not supplant or displace the familiar interpretive modes.  Instead, it simply re-frames the question that existing interpretive modes seek to answer—from “What do these words mean?” to “What meanings do these words preclude?” 

To appreciate the advantages of an apophatic orientation, it is helpful to first consider what, exactly, the act of interpretation entails.  Though scholars in constitutional law, philosophy, political theory, and hermeneutics disagree about what it means to interpret a text, they largely agree on why we do it: to identify or discern a text’s meaning.  This is an affirmative task (interpreters look for some existing meaning) and it answers an affirmative question: What does this text actually (affirmatively) communicate? 

Apophatic interpretation flips this on its head.  Rather than chasing the Constitution’s affirmative meaning, intention, or commitments, apophatic interpretation posits that the interpreter’s guiding question should be, “What is the Constitution not?”  Interpreters may seek this negative meaning using their preferred interpretive tools—whether textualist, originalist, or living constitutionalist.  But once they have identified the Constitution’s negative content, they must interpret the document’s affirmative provisions in ways that are consistent with those rejections.  Put differently, apophatic interpretation helps interpreters identify meanings that are untenable because they enact what the Constitution was designed to reject.  In doing so, apophatic interpretation maximizes our options for constitutional action and agency: As long as we do not enact what the framers rejected, we should feel empowered to explore many possible constitutional interpretations. 

Applied to the question of birthright citizenship, an apophatic approach provides new and additional evidence that the Trump administration’s EO cannot stand.  As we argue in our working paper and in this blog post, the Constitution emphatically and thoroughly rejects hereditary civic status.  The Constitution’s very existence supports this view: The document formalizes the colonies’ rejection of English government and its hereditary-based political classes.  It also contains multiple provisions that reveal a desire to keep inherited status at bay. 

Take, for example, the Guarantee Clause of Article IV, which requires the federal government to secure for every state “a Republican Form of Government.”[4]   Though the framers did not always agree about what republican government required, they all agreed on what republican government was not: a system of hereditary civic status.  Madison, the chief architect of the Clause, wrote that it would empower the federal government to “defend the system against aristocratic or monarchical innovations.”[5]  James Iredell described it as ensuring that “no state should have a right to establish an aristocracy or monarchy.”[6]  In the lead-up to Reconstruction, members of Congress recognized slavery as the very antithesis of republicanism, with one legislator describing slavery as “a caste, an aristocracy, based upon . . .  blood entirely inconsistent with republican government and republican institutions.”[7]  The Joint Committee on Reconstruction later cited the Guarantee Clause as a legal basis for Reconstruction, including the Fourteenth Amendment. 

The Constitution’s Titles of Nobility Clauses likewise reveal an anti-heredity ethos.  These Clauses prohibit the federal and state governments from granting titles of nobility.[8]  In doing so, they reject the link between blood and civic status that permeated English common law.  Alexander Hamilton described the Nobility Clauses as “the cornerstone of republican government,”[9] and Madison called them “the most decisive proof of the Constitution's republican character.”[10]  And though the Clauses were adopted with little debate, post-adoption commentary describes the Clauses and their state constitution counterparts as protecting against “hereditary rights, shadows of aristocracy”[11] and “hereditary rank and consequence.”[12] 

Article III, Section 3 continues the Constitution’s anti-aristocracy project by providing that “no Attainder of Treason shall work Corruption of Blood . . . .”[13]  At English common law, descendants could be punished for a predecessor’s treason.  The Corruption of Blood Clause rejected that tradition.  After the Constitutional Convention, James Madison approvingly observed that the provision restrained Congress from “extending the consequences of guilt beyond the person of its author,”[14] and Joseph Story reflected that corruption of blood inappropriately allowed for “the sin [to be] visited upon remote generations.”[15]  Frederick Douglass later invoked the Corruption of Blood Clause to advocate for abolition, arguing that the Clause prohibited systems which, like slavery, punished children because of their parents’ status.[16] 

In short, the Guarantee Clause, the Titles of Nobility Clauses, and the Corruption of Blood Clause each reject inherited civic status.  They tell us that an individual’s relationship to the state cannot be inherited from a parent.  And they tell us that children must not be punished for their parents’ wrongs (even in the case of treason—an active betrayal of the state).  Taken together, these provisions form an anti-aristocracy constitutional framework.  Whatever else the rest of the Constitution means, it must not contradict that underlying, apophatic rejection. 

What does this mean for the question of birthright citizenship?  If Trump’s EO goes into effect, children born in the United States to parents who are present in the country without authorization will be marked with civic disability: Rather than enjoy the status and privileges that come with citizenship, they will exist as lesser, second-tier members of the political community.  This civic disability will burden every interaction they have with the government and with society as a whole.  Ineligibility for means-tested public benefits may leave a growing caste of U.S.-born children without basic necessities.  Vulnerability to immigration enforcement efforts, including possible detention and removal, even for those who have found a different path to immigration status, will threaten separation from family and community.  And some may learn they are stateless because the country of their parents’ citizenship does not consider them citizens, either. 

The consequences would compound over time.  If those non-citizen children remain in the country and do not find some other way to naturalize or gain the requisite immigration status, they, too, will give birth to children who are not citizens.  Those children will pass their inherited civic disability to their children.  And so on.  Meanwhile, people legally present in the United States will pass their superior civic status to their posterity, and on and on down the line.  In short, the EO will create two parallel hereditary tracks: Some will inherit civic status privilege, and others will inherit the consequences of their parents’ (or grandparents’, or great-grandparents’) unauthorized presence. 

Our anti-heredity Constitution does not brook this result.  When so much of the Constitution repudiates civic heredity, it would be very odd indeed if the Citizenship Clause permitted civic benefits or disabilities transmitted through blood.  Put differently, the Constitution’s rejections of hereditary civic status foreclose an interpretation of the Fourteenth Amendment that would deny citizenship to children born in the United States to undocumented or visiting parents. 

Carolina Núñez is the Charles E. Jones Professor of Law at BYU Law.  You can reach her by e-mail at nunezc@law.byu.edu. Lucy Williams is an Associate Professor at BYU Law.  You can reach her by e-mail at williamsl@law.byu.edu.