Birthright citizenship: Originalism 101

These days, everyone wants to be an originalist. But in Trump v. Barbara, the birthright-citizenship case at the Supreme Court, not everyone is doing originalism well.

Alas, the Trump administration and its allies – including solicitor general D. John Sauer, law professor Kurt Lash, and law clerk Elias Neibart – are flunking Originalism 101: leaning on private letters, mangling old caselaw, turning a blind eye to mountains of contrary historical evidence, and distorting the 14th Amendment’s plain text (both what it says and doesn’t).

Private letters

Suppose a historian uncovered a private letter by James Madison contradicting what Madison said publicly in the Federalist Papers and in the Virginia ratification debates. Would we have to reopen settled constitutional questions? Overturn longstanding precedents? Disregard the Constitution’s plain text and history?

Of course not. A letter read only by Madison and his correspondent would have virtually zero legal significance to an originalist. As Justice Antonin Scalia always insisted, what matters is original public understanding, not “secret or technical meanings.”

Yet an unsigned, undated, private letter found in the Andrew Johnson papers is the cornerstone of Sauer’s brief on behalf of the Trump administration. Sauer clerked for Scalia but has evidently forgotten his boss’s most basic teachings.

Sauer attributes this unsigned letter to Senator Lyman Trumbull, the sponsor of the 14th Amendment’s precursor statute. (Professor Kurt Lash, citing AI handwriting analysis, concurs.) The letter interprets a draft version of the statute as granting citizenship to children “born of parents domiciled in the United States.” That language – especially the word “domiciled” – is convenient for Sauer, who claims that a child is a birthright citizenship only if at least one parent’s “domicile,” or legal home base, is in America.

But even if Trumbull did author this private letter, who cares? Neither the solicitor general nor Professor Lash has produced a shred of evidence that it publicly influenced the ratification of the 14th Amendment. How can a proper originalist credit a letter when we don’t know for sure (1) who wrote it, (2) exactly when and why it was written, (3) whether receipt was ever logged or acknowledged, (4) whether it was ever read, and (5) whether it was ever superseded by a later-sent letter?

More importantly, the letter contradicts what Trumbull said in public. When Senator Edgar Cowan, for example, asked Trumbull point-blank on the Senate floor whether the precursor statute would make citizens of “the children of . . . Gypsies born in this country,” Trumbull answered: “Undoubtedly.” But parental domicile could not have been required if the children of “Gypsies” were “undoubtedly” birthright citizens, because domicile requires having a permanent residence, which the paradigmatically itinerant Romani did not have. (Cowan himself complained that they “have no homes,” “live nowhere,” and “wander in gangs.”)

Most importantly, this lonely letter also deviates from countless public declarations during the 14th Amendment’s ratification that all born “under the flag” were birthright citizens, with no parental-domicile qualification whatsoever.

Suspect cases

So much for private letters. What about a trickle of post-ratification lower-court cases – some of which failed to even mention the 14th Amendment?

In a recent Harvard Journal of Law & Public Policy essay, law clerk Elias Neibart claims that “a handful of cases” “call into question” the long-dominant view that birthright citizenship is geographic, not genealogical – that constitutional birthright citizens are citizens because of where they are born, not to whom they are born. The cases, he says, “demonstrate” that “courts did not adopt a territory-centric view of citizenship” but rather “probed the legal status of the child’s parents.”

The problem? Of the five cases Neibart cites, only two were 14th Amendment cases – and both are perfectly consistent with the geographic view that all born (1) on American soil and (2) under the American flag are birthright citizens. The other three cases don’t even name the 14th Amendment – not once! – and are no guide to its meaning.

Start with the two 14th Amendment cases. First, United States v. Elm, an 1877 New York district-court case, decided that “an Oneida Indian” named Abraham Elm was indeed a constitutional birthright citizen. Under the geographic view, that ruling would make perfect sense if Elm was born outside tribal land, on American soil under an American flag.  

So was Elm born outside tribal land? Neibart says it’s “unclear from the opinion,” which he thinks “undermines the territory-centric view.”

In fact, the opinion is crystal clear. Elm was not born on a territorially bounded enclave or reservation; no such place existed in or around his birthplace at the time of his birth. Elm “was born . . . within the town of Lenox” in New York. Decades earlier, “the main body of the Oneidas [had] removed to” Wisconsin. Since then, “the tribal government ha[d] ceased as to those who remained in” New York, and the Oneidas who remained “d[id] not constitute a community by themselves.” Elm and those like him were therefore “natives by birth.”

Neibart stresses arguably ambiguous dicta in Elm about “tribal relations.” But why should proper originalists defer to district-court dicta in a case that in any event reached the right result by identifying the key soil-and-flag facts? Why, in particular, should originalists dwell on every jot and tittle of a district-court opinion that cited Chief Justice Taney’s opinion in Dred Scott without strong disapproval (an important fact Neibart nowhere mentions), and that pored over the words of a precursor congressional statute instead of focusing on the precise words of the 14th Amendment – the Constitution – itself? (We will explore the relationship between the statute and the Constitution in greater detail in a future column.)

Second, McKay v. Campbell, an 1871 Oregon district-court case, concluded that one William McKay was not a 14th Amendment citizen. This time, the geographic flag-and-soil view would expect to find that McKay was born under a foreign flag and/or on foreign soil.  

And that’s exactly what we find in the case. McKay “was born at a post under the flag of the Hudson Bay Company,” a “quasi public and political British corporation,” on land “jointly occupied” by American and British interests under treaty. Though born in what would later become wholly-American Oregon, McKay was in law born on “British soil,” said the court, “as though . . . on the banks of the Thames.” Thus, the main facts undergirding McKay’s status turned on the “soil” and the “flag” – precisely the framework Professor Akhil Reed Amar advanced in his amicus brief and that this “Brothers in Law” column has since been developing. True, the court also noted that McKay’s father was a British subject, but its analysis would have been incomplete without that fact. If McKay’s father had been an American citizen, McKay might have qualified for statutory birthright citizenship under a landmark 1855 statute granting citizenship to children born abroad to American-citizen fathers.

Neibart’s remaining three cases – Ex parte Reynolds (an 1879 Arkansas circuit-court case), United States v. Ward (an 1890 California circuit-court case), and Keith v. United States (an 1899 Oklahoma state-court case) – didn’t apply or even name the 14th Amendment. (Each asked whether some person was an “Indian” within the meaning of some federal statute or treaty.) All three postdated the end of Reconstruction in 1877; one came down more than 30 years after ratification. None were Supreme Court or even circuit-court decisions.

Worse, all three applied Dred-Scott-like judge-made rules that assigned the father’s legal status to the children of free persons but the mother’s status to children born to female “slave[s]” – “upon the principle . . . that the owner of a female animal is entitled to all her brood.” These blood-curdling rules themselves replaced older rules asking whether a sufficient “quantum of blood” coursed through a human’s “veins.” (All these quotations come from Reynolds, which like Elm repeatedly cited Dred Scott, and Neibart’s essay itself quotes the word “blood” 6 times in 7 pages.)

These odious cases speak to birthright citizenship only in the way Plessy v. Ferguson speaks to racial equality – by showing us that many (though not all) post-Reconstruction-era judges betrayed the 14th Amendment’s highest promises and deepest principles, and by warning us to hold fast to its text and enactment history, lest we lose our way, too.

Gnats and camels

One last point. No scholar has yet found even one clear case involving a baby born to tribally allegiant parents outside tribal land – e.g., Lenox, NY – who was judicially denied birthright American citizenship because that American-soil-and-flag baby had the wrong “blood” – “red” blood rather than “white” blood.  

By contrast, the blood-based, hereditary theory Neibart writes to support cannot explain the citizenship of millions: the children of illegally trafficked slaves, the children of nondomiciliary “Gypsies,” the children of non-law-abiding Confederates, the children of nonallegiant Chinese “Coolies,” the Reconstruction Congressmen of noncitizen or unknown parentage whose congressional eligibility was never challenged, the children of enemy-alien Japanese parents born in U.S. detention centers during World War II… The list goes and on. Yet Neibart never even acknowledges, much less addresses, any of these elephantine problems with his utterly anti-textual and Dred Scott-tinged theory.

In fixating on the trivial and sidestepping the paradigmatic, Sauer, Lash, and Neibart thus strain out gnats and swallow camels. But as faithful originalists ourselves, we must never forget the key constitutional fact that the Trump administration and its allies consistently ignore: The 14th Amendment’s text says absolutely nothing whatsoever about “parent” or “parents” or “blood.”