The Liberal Scholars Who Influenced Trump’s Attack on Birthright Citizenship

The amendment was debated in the Senate in 1866, as the Reconstruction Congress attempted to suture the nation together after the Civil War and secure rights for freed slaves. At that time, discussion of the Citizenship Clause mostly focussed on the question of Native Americans on tribal lands within U.S. territory. The words “subject to the jurisdiction thereof,” Lyman Trumbull, a senator from Illinois, explained, prevented members of those tribes from receiving birthright citizenship, since they were beyond the nation’s “complete jurisdiction.” (Two other groups were similarly excluded: children born to foreign diplomats and those born to a hostile occupying force.)

To Schuck and Smith, that conclusion was revelatory. The phrase “subject to the jurisdiction” must mean more than the mere accident of birth. It seemed to denote a mutual compact—people whose sole allegiance was to the U.S., and who were intentionally accepted by the government. Given that the phenomenon of illegal immigration didn’t exist when the Fourteenth Amendment was drafted, they reasoned, the clause simply didn’t apply to children born on U.S. soil whose parents had come here “without consent.” Nor did the prevailing Supreme Court precedent, U.S. v. Wong Kim Ark (1898), seem to address them, since it concerned a man whose parents were legal immigrants. Schuck and Smith concluded that Congress could limit future birthright citizenship to the offspring of citizens and permanent residents—a notion that “has to our knowledge never been seriously considered.” Smith told me he didn’t believe Congress should do this, only that it could. “We thought it was provocative,” he said.

Various academic peers deemed their novel reading “seriously flawed,” “simply puzzling,” and “morally incoherent.” “People were shocked,” recalled the Harvard immigration scholar Gerald Neuman. “The settled understanding had been settled for so long.” Undocumented immigrants, critics pointed out in a flurry of law-review essays, were obviously bound by the U.S. legal system. Trumbull had been speaking of Native Americans on the frontier or on reservations that largely operated as quasi-foreign states under treaties with Washington. Like foreign diplomats and their families, they couldn’t be sued or prosecuted in federal court. (Native Americans wouldn’t be granted citizenship until 1924.)

Some of the book’s arguments, Neuman said, “are just made in ignorance of history.” Immigration was not entirely unregulated, he pointed out, before the Fourteenth Amendment was written. States barred the entry of “paupers” and the “infirm”; Southern legislatures prohibited the entry of free Black people. In 1803, Congress made it a federal offense to bring any “people of color” into the country, to prevent an influx of free Black immigrants fleeing the Haitian revolution.

The amendment’s opponents were also acutely aware that it would extend citizenship to the children of immigrants they did not want to let in. Edgar Cowan, a Republican senator from Pennsylvania, warned of an invasion of “gypsies” who “pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him, but, on the other hand, have no homes, pretend to own no land, live nowhere, settle as trespassers wherever they go.” He also feared “a flood of immigration of the Mongol race,” demanding, “Is the child of the Chinese immigrant in California a citizen?” Although Chinese immigrants were then barred from naturalizing, the response from the California senator John Conness, another Republican, was unequivocal: U.S.-born children “of all parentage whatever” would be citizens. With these possibilities in plain view, the amendment was ratified in 1868.

Above all, legal experts concluded, Schuck and Smith had misconstrued the Fourteenth Amendment’s purpose. The Constitution barely mentioned citizenship, in part because disagreements over slavery made it impossible to agree on a definition. In the Dred Scott case, of 1857, the Supreme Court supplied one, ruling that no person of African descent, free or enslaved, could be an American citizen. The Fourteenth Amendment’s authors sought to establish an expansive, titanium-clad definition of citizenship that couldn’t be dismantled by the courts, Congress, or the President. In a blistering review of “Citizenship Without Consent” titled “Back to Dred Scott?” Neuman concluded that Schuck and Smith had, at best, “identified a strategy by which a court, determined to deny citizenship to American-born children of undocumented aliens, could justify such a holding.”