Legal historians may ultimately shape the Supreme Court’s upcoming decision.
Is everyone born in the United States a citizen? President Donald J. Trump answers “no.”
That answer breaks with decades of practice and regulations. Now, the U.S. Supreme Court is expected to settle the question once and for all. The case, Trump v. Barbara, is expected to determine the citizenship status of millions of future children.
Weeks after his inauguration, President Trump issued an executive order redefining how the government treats children born to undocumented parents. Previously, the government treated them as citizens with birthright citizenship. President Trump’s new policy is to treat them as non-citizens like their parents.
The 14th Amendment to the Constitution states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The Supreme Court will soon determine whether that text guarantees birthright citizenship regardless of immigration status.
History may ultimately decide the case. A majority of the current Court has embraced originalism—the idea that the Constitution’s meaning today should accord with what it meant when it was adopted. Now, both the federal government and the challengers of the executive order are making history-based arguments to define what the 14th Amendment means. At oral argument, for example, both the government and the order’s challengers led primarily with reference to the history.
The phrase “subject to the jurisdiction thereof” is the language in the 14th Amendment getting the most attention. Courts and regulators use the word “jurisdiction” in numerous ways. Even Justice Ruth Bader Ginsburg admitted that determining its meaning in any given case is a challenge—especially when the relevant legal source is from 158 years ago.
Legal historians have tried deciphering the 14th Amendment.
Michael D. Ramsey, a professor of law at the University of San Diego School of Law, argues that the cryptic language becomes clear when read in context. He explains that the phrase “subject to the jurisdiction thereof” means something akin to people whom the United States has power to regulate. Ramsey traces the phrase back to 19th century legal texts which explained that cargo ships were “subject to the jurisdiction of” a nation when they entered its waters.
That reading of “subject to the jurisdiction thereof,” at a glance, sounds like it could cover anyone—a meaningless distinction. But Ramsey points out that the children of foreign ambassadors or Native Americans would be excluded because they were—at least partially—not bound by United States law. Those exclusions exist, he says, in the other areas of law where “subject to the jurisdiction of” and similar phrases are used.
Keith Whittington, a professor of law at Yale Law School, agrees based on pre-Amendment immigration law. He highlights how the 14th Amendment did not invent birthright citizenship—it only reaffirmed the right after it was denied to Black Americans in the infamous Dred Scott v. Sanford case. Whittington argues that the pre-Amendment rule was that birth on United States soil alone was enough to prove citizenship. Under the pre-Amendment practice, he explains, the exceptions for ambassadors and the like were narrow, not a general rule denying citizenship to outsiders. The order’s challengers relied on Whittington’s work at oral argument.
Others argue that President Trump’s executive order is permissible under the 14th Amendment. For Kurt Lash, a professor of law at the University of Richmond School of Law, for example, the Amendment requires both birth in the country and allegiance to the United States. That would create a default assumption of birthright citizenship that can be undone if the child’s parents were not allegiant to the United States. To Lash, violating immigration laws is one way to show non-allegiance.
Lash also looks to history—in particular to how the ambassador exception came into existence. Unlike Whittington, Lash reads the ambassador exception as evidence of a general rule of excluding people with foreign ties. He notes that, after all, one of the Amendment’s drafters stated that “subject to the jurisdiction thereof” means “not owing allegiance to anyone else.” Others have responded to this argument by calling Lash’s reliance on that statement “cherry-picking.”
Legislators are weighing in at the Supreme Court, too. A group of Republican U.S. Senators and Representatives have asked the Court to uphold President Trump’s order. They echoed allegiance-based arguments, such as Lash’s.
On the other side of the aisle, Democratic legislators have urged the opposite. They point to a 1952 statute that also grants birthright citizenship using the same language as the Amendment. The 1868 meaning of “subject to the jurisdiction thereof” does not matter, the legislators say, because the public in 1952 thought birthright citizenship included the children of undocumented immigrants.
Lawrence Solum, a professor of law at the University of Virginia School of Law, is doubtful that the Court should decide Barbara based on the contemporaneous meaning surrounding the adoption of the 1952 statute. He highlights that, because the statute and Amendment use the same language, the Court would normally read the statute to mean the same as the higher law, the 14th Amendment. According to Solum, holding otherwise would be a “tricky issue” that the Court may not have enough information to answer.
The case was argued on April 1. The Court is expected to rule by the end of June.
