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THE ANTI-CONSTITUTIONAL ATTACK ON BIRTHRIGHT CITIZENSHIP  
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Evan D. Bernick
January 30, 2025
Law and Political Economy (LPE) Project
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_ Looking back at our constitutional history to capture Trump's
order’s viciousness. Doing so reveals that the order is not merely
unconstitutional, but anti-constitutional. _

Sylvia N. Thompson (left) with her daughter Addie Jean Haynes and
Addie’s ten-year-old son Bryan Haynes holding up a poster-sized copy
of the 14th Amendment at the NAACP Portland office in 1964., Zinn
Education Project

 

Donald Trump’s executive order purporting
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end birthright citizenship for the children of undocumented immigrants
and temporary visitors is flagrantly unconstitutional. It defies over
120 years of Supreme Court
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command of the Fourteenth Amendment’s text. It deserves exactly the
kind of dismissive response that it received
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District Judge John C. Coughenour, a Reagan appointee who, in blocking
the order for 14 days, confessed that he had “difficulty
understanding how a member of the bar would state unequivocally that
this is a constitutional order.” The order, he added, “just
boggles my mind.”

Indeed, the order is so transparently lawless that to analyze its
constitutionality at all is to risk conveying the impression of a
serious legal debate. So, for the record: there is none. Trump may as
have well signed an executive order that grants Texas 40 Senators.
When the Supreme Court eventually weighs in on the order, we will not
learn whether it is constitutional. We will learn whether the Supreme
Court is prepared to follow the Constitution.

Nevertheless, there is value in looking back at our constitutional
history to capture this order’s viciousness. Doing so reveals that
the order is not merely unconstitutional, but anti-constitutional. It
is an effort to reconfigure the Reconstruction Constitution into a
means of perpetrating the very evils that abolitionists and
Republicans sought to eradicate from our constitutional order. It thus
represents an attack on the most important and morally valuable parts
of our constitutional history and should be resisted by means of any
democratic power at hand.

THE CITIZENSHIP CLAUSE

Some constitutional questions are difficult. This one isn’t.
Here’s the text of the Citizenship Clause:

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.

“All persons born in the United States … are citizens of the
United States,” so long as they are “subject to the jurisdiction
thereof.” Are the children of undocumented immigrants and temporary
visitors—people who can be sued, arrested, prosecuted, detained, and
deported—“subject to the jurisdiction” of the United States? If
it seems obvious
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they are, your intuition is correct. Only by incorporating the kinds
of textually unstated assumptions and technical distinctions that have
earned lawyers a bad reputation can this seem remotely complicated.
Though claiming the authority of history, the assumptions and
distinctions are ahistorical.

All subsequent anti-birthright “literature” (broadly defined to
include things that are written down somewhere) is shaped by Peter
Schuck and Rogers Smith’s 1985 book _Citizenship Without Consent:
Illegal Aliens in the American Polity_.
[[link removed]] (For
the record, Schuck has expressly rejected the constitutionality of any
anti-birthright executive order and indeed suggested that
no “competent lawyer”
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defend it.) The authors elaborate a theory of citizenship that is
based on reciprocal consent on the part of the sovereign and the
would-be citizen. The sovereign agrees to provide protection to the
citizen, and in return the citizen pledges undivided allegiance to the
sovereign. Schuck and Smith contend that although the common law held
that citizenship generally attached to all persons born within the
territorial jurisdiction of a state and subject to its civil and
criminal laws—a theory of citizenship grounded in a nonconsensual
and indissoluble sovereign-subject bond—the Framers of the
Fourteenth Amendment rejected this “ascriptive” view of
citizenship.

Their argument draws extensively upon the legislative debate over the
Citizenship Clause regarding its application to Indians. Schuck and
Smith make a great deal of Senator Lyman Trumbull’s insistence that
“jurisdiction” was lacking over Native nations and their citizens
because they did not “ow[e] allegiance to anybody else,” as well
as Senator Jacob Howard’s claim that Tribal citizens were not
“subject to the jurisdiction thereof” because United States did
not have “full and complete” jurisdiction over them. From such
evidence Schuck and Smith extract a general Republican commitment to
consensual citizenship. Common to all the exceptions to birthright
citizenship acknowledged by Republicans—children of Tribal citizens,
children of ambassadors, children of diplomats—is, they maintain, a
lack of reciprocal consent. Pointing to the absence of reciprocal
consent between undocumented immigrants and the United States, Schuck
and Smith claim that the children of undocumented immigrants are not
guaranteed birthright citizenship.

Schuck and Smith’s account has been subjected to
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For instance, critics have highlighted the fact that enslaved people
were smuggled into the country illegally and without the consent of
either enslaved people or the United States following Congress’s
1807 prohibition on importing slaves. If Schuck and Smith are right,
then it is doubtful that the Citizenship Clause would have
nullified _Dred Scott v. Sandford_
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denial of Black citizenship, even though this is what it is
universally understood to have been designed to do. (Indeed, as Schuck
and Smith concede, their account of the Citizenship Clause suggests
that it incorporated a theory of citizenship which closely resembles
the one articulated in Court’s infamous 1857 decision. _Dred
Scott_ saw Chief Justice Roger Brooke Taney emphasizing the
importance of the “will and intention” of the sovereign to make a
class of people part of the political community.)

Schuck and Smith also neglect pivotal constitutional history which not
only illuminates the content of the legislative debates but provides
compelling normative reasons to care about honoring their
output. _Jus soli_
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notion that people born within a nation’s territory are citizens of
that nation—wasn’t borrowed uncritically from the common law by
Reconstruction Republicans. As Martha Jones details
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it was made part of the Fourteenth Amendment because
the abolitionists
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constitutional theory worked assiduously to entrench it.

Schuck and Smith are not wrong to point out that antebellum
citizenship was contested conceptual ground, particularly since the
Constitution of 1788 lacks a clear definition of it. But they fail to
recognize the value of _jus soli_ to abolitionists, as well as to
fully appreciate how decisively the antebellum struggle over
citizenship was resolved in favor of _jus soli_. Nothing that Schuck
and Smith extract from the legislative record suggests anything but a
fulsome Republican commitment to the principle_._ Nothing less,
Republicans believed, would be sufficient to prevent racial domination
and secure republican freedom for all Black Americans.  

BLACK CITIZENSHIP AND TRIBAL SOVEREIGNTY

From today’s vantage point, the exclusion of the children of Tribal
citizens from birthright citizenship might seem at first to be
downstream of anti-Tribal animus. Yet as Gerard Magliocca’s
work shows
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appearances can deceive. The same abolitionist movement that converged
around birthright citizenship for the sake of Black freedom came to
support Tribal sovereignty as a means of securing Native freedom. And
supporting Tribal sovereignty meant recognizing that Tribal citizens
living on Tribal land were not generally subjected to the civil and
criminal laws of the United States—and thus declining to impose U.S.
citizenship upon them.

Many antislavery activists began the nineteenth century as proponents
of forcibly removing enslaved people from the United States and
settling them in Africa. Even William Lloyd Garrison, the fieriest of
abolitionists, initially supported colonization. However, he and
others would come to change their views, in part, because of the
brutality of the forced removal
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Cherokee Nation from their ancestral homelands by federal troops under
the administration of President Andrew Jackson. Enslaved people,
Garrison claimed, were “as unanimously opposed to a removal to
Africa, as the Cherokees from the council-fires and graves of their
fathers.”

Abolitionists condemned the Cherokee removal as a moral atrocity. But
they also insisted upon its lawlessness. They celebrated Chief Justice
Marshall’s 1832 opinion for the Court in _Worcester v. Georgia_,
which—consistently with the original meaning
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1788 Constitution—affirmed that Tribes were sovereign nations. As
sovereign nations, they could be bound by the federal government in
respect of their internal affairs on their territory only with
treaty-based consent, and by state governments not at
all. _Worcester _was the law of the land, they insisted, even though
Jackson ignored it.

Their insistence, it is worth noting, had little to do with the
authority of the Supreme Court. Abolitionists knew better than to
leave the Constitution to the Court. When the Court in _Prigg v.
Pennsylvania
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constitutionality of the Fugitive Slave Act of 1793,
abolitionists rejected
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reasoning outright and resisted slave-catchers through means ranging
from freedom suits
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liberate alleged fugitives to armed
[[link removed](Jun_2%2C_1854).1?lang=en] insurgency
[[link removed]]. _Worcester_ was
the law of the land because—as Ohio Representative and leading
Reconstruction Framer John Bingham put it in 1857—“[t]he
Constitution is based upon the EQUALITY of the human race,” and the
Constitution promoted equality by limiting “[t]he extraterritorial
legislative power of every State … to its own citizens and
subjects.” The same old serpent
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domination wound through Georgia’s disregard of Tribal sovereignty
and enslavers’ insistence that their states’ pro-slavery property
law followed enslavers into federal territories.

NULLIFYING THE FOURTEENTH AMENDMENT

The Citizenship Clause is at once a monument to a world-historically
successful democratic struggle
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domination and a means of its continuance. It promises birthright
citizenship to all who would otherwise be subjected to the arbitrary
power of regulatory and enforcement mechanisms over which they have no
say. The children of Tribal citizens, meanwhile, were to be protected
by their own sovereigns against domination, and the United States
would respect Tribal sovereignty.

This constitutional history provides us with resources, not only to
resist the executive order through litigation, but to perceive the
order’s place in a reactionary constitutional politics to which the
Trump administration is committed.

In the brief
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so failed to persuade Judge Coughenour, Trump’s lawyers contended
that because children of Tribal citizens are not guaranteed birthright
citizenship, neither are the children of undocumented immigrants and
temporary visitors. The move depends upon the supposedly greater
allegiance that Tribal citizens have to the United States: if
citizenship is based on reciprocal consent to protection and
allegiance, and if the children of Tribal citizens are not guaranteed
birthright citizenship despite their parents having greater allegiance
than undocumented immigrants and temporary visitors (the argument
goes), it follows that children of the latter are _definitely_ not
guaranteed birthright citizenship.

The argument is foundationally flawed because of its dependence upon a
consensual theory of citizenship that—whatever might be said for
it—did not structure the thoughts or actions of Reconstruction
Republicans and is no part of the Fourteenth Amendment. Again,
abolitionists and the Republicans who followed them enshrined a rule
of birthright citizenship.

The exception for the children of Tribal citizens is especially
resonant in view of the history of abolitionist constitutionalism, but
as Michael Ramsey observes
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neither it nor the other exceptions discussed by Framers were unusual.
The exceptions encompassed the children of people “legally or
practically excluded from U.S. sovereign authority,” including
Tribal citizens, foreign rulers and diplomats who enjoyed diplomatic
immunity, and foreign military forces who in a very literal sense
could not be subjected at all. They were well known to
nineteenth-century law. Neither the children of undocumented
immigrants nor temporary visitors fit within any of these exceptions,
nor would the reasons for those exceptions support creating a new one
for classes of people who are—unlike the excepted
classes—pervasively subjected to regulatory and enforcement power of
the United States. The set of exceptions to the Citizenship Clause’s
promise of birthright citizenship is constitutionally closed.

This history also reveals the deep perversion at the core of argument
put forward by the Trump Administration. To support its claim that
“Indian tribes occupy an intermediate position between foreign
States and U.S. States,” the brief cites the Supreme Court’s 1831
decision in _Cherokee Nation v. Georgia_
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that Tribes are “domestic dependent nations.” _Cherokee
Nation_ anticipated _Worcester_, with its forceful affirmation of
territorial sovereignty and its denial that Tribal citizens on their
land were bound by the laws of the United States absent treaty-based
consent.

In the hands of Trump’s lawyers, a constitutional shield
against settler-colonial
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an unconstitutional sword. The sword is wielded to dominate people who
cannot depend upon the protection of any competing sovereign against
United States law. Meanwhile, the inadequately contextualized
assertion that Tribal citizens are constitutionally excepted from
birthright citizenship has created confusion
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whether the administration considers Native people to be United States
citizens. Reports
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Trump’s ICE raids are ensnaring Native people suggest that the
administration’s anti-Tribal callousness is pervasive.

None of what the Trump administration is doing is accidental. It is
downstream of a constitutionalism that resembles that of the
antebellum period. That reactionary constitutionalism
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defined by unchecked power over racialized populations which are
deemed unfit to govern themselves. Scholars
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arguments for the constitutionality of the order deserve a serious
hearing are—whether they realize it or not—providing cover for the
enemies of the Fourteenth Amendment, and indeed of republican freedom.
These arguments have been heard for far too long. They should not be
heard again.   

_EVAN D. BERNICK (@evanbernick
[[link removed]]) is Associate
Professor at the Northern Illinois University College of Law and
co-author of The Original Meaning of the Fourteenth Amendment: Its
Letter and Spirit [[link removed]]._

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* 14th amendment
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* citizenship
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* U.S. history
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* U.S. Constitution
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* democracy
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* settler colonialism
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