The Birthright Citizenship Case Has Already Been Decided--In 1868

Many of the men who wrote the Fourteenth Amendment would have been non-citizens under Trump's theory of it. Nobody challenged them.

The Joint House and Senate Reconstruction Committee, 1866

Today the Supreme Court hears arguments in the case of Trump v. Barbara, the birthright citizenship case. To me, it’s the most shocking case I’ve ever seen the Court take up.

This is more than a lawsuit. So much more. At the heart of this case is a radical assault on the “Second American Revolution,” the great, brave, colossal effort of our country in the years after the Civil War to make that horror mean something, to reach for a better America, to affirm and achieve President Lincoln’s call at Gettysburg for “a new birth of freedom.”

In this case bearing his name, Donald Trump seeks to trash that.

At issue—the ringing opening words of the Fourteenth Amendment: “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.”

For generations, presidents, justices, and ordinary Americans have understood those words to mean—well, to mean what they say. If a baby is born “under our flag and on our soil,” as they put it at the time—that child is one of us. An American citizen.

Over the past decade and more, a cottage industry of Fourteenth Amendment denialism has grown up—fringe at first, now a mainstream Republican position. Their argument is this: those words “subject to the jurisdiction of” were meant at the time they were written into the Amendment to exclude the children of parents one or both of whom was not properly “domiciled” in the US—”illegal aliens,” as they like to say today.

So the Trump administration and its no-longer-fringe scholarly supporters insists they are simply restoring what the Fourteenth Amendment’s framers originally intended. And that’s usually the winning ticket, the sacred cow, of conservative and Trumpist jurisprudence: “Original public meaning.”

That argument has just been annihilated by a law review article—and by two words written by a conservative justice in 1957.

The dog that didn’t bark

Let’s start with the scholarship. Professors Amanda Frost of the University of Virginia and her co-author Emily Eason have just published “The Dog That Didn’t Bark: Eligibility to Serve in Congress and the Original Understanding of the Citizenship Clause” in the Georgetown Law Journal. The title comes from a great Sherlock Holmes story, “The Adventure of Silver Blaze,” where Holmes deduces that the theft of a racehorse was an inside job, since no one heard the watchdog in the stables bark.

Sometimes the most powerful evidence is what didn’t happen.

Here’s the setup. Every member of Congress, every US Senator, must be a US citizen. These are basic Constitutional requirements: Article I, Section 2 and Section 3.

Since every member of Congress and every Senator must be a U.S. citizen, there have been times throughout our history when qualifications challenges based on that requirement have become a blood sport. During the Reconstruction era—precisely when the Fourteenth Amendment was being drafted, debated, and ratified—such challenges tripled in frequency. Senators and representatives were being challenged for perjury, disloyalty, treason, sedition, personal character, polygamy. The knives were perpetually out.

Professor Frost and Ms. Eason asked a question everyone had been ignoring in the increasingly bitter disputes over the meaning of the Fourteenth Amendment: Were all those guys (and they were all guys) who wrote and passed the Amendment bona fide citizens themselves, under the Trump definition?

Brilliant question. Getting the answer proved really hard.

Frost and Eason spent countless hours in archives researching the birth and immigration status of all 584 members of the 39th, 40th, and 41st Congresses—the years when the Amendment was drafted, debated, passed, and ratified. What they found turns the administration’s originalist argument inside out. It brings the charade to an end.

More than a dozen of the congressmen in the House of Representatives at that time would not qualify as citizens under Trump’s reading of the Citizenship Clause. Their parents arrived in America as non-citizens without evidence of lawful permanent domicile. Under the Trump administration’s theory, these men were never American citizens—and thus had no right to serve in Congress, much less vote to amend our Constitution.

The dog that didn’t bark? Nobody challenged them. Not once.

Consider Representative William Prosser, Republican of Tennessee, who served from 1869 to 1871. Prosser was born in 1834 to Welsh immigrant parents. The researchers found no record that his parents had filed a declaration of intent to become citizens before his birth, which was the proper process to establish legal residency in the US at the time. His father didn’t file that declaration until 1874—when he was sixty-four years old. That is eight years after his son—an “illegal” in Trump’s definition—voted on the Amendment.

Then there is Representative William Mungen of Ohio, a Democrat who served from 1867 to 1871—spanning both the drafting and ratification of the Amendment—born to parents who had both immigrated from Ireland. He, too, under Trump’s theory, was never a citizen. And like others whose lives and family history the article uncovers, he had no right to sit in the Congress that wrote and ratified the Amendment defining what citizenship means. According to Trump.

And nobody raised a word about either man. Or about any of the others.

So these men—who are among the original intenders themselves, whose original understanding the Trumpies and their advocates claim to be vindicating—these guys voted on an amendment they knew—they understood—to strip them of their own citizenship and end their political careers in Congress?

It’s insane.

These were men who knew exactly what the Citizenship Clause meant—they had just written it, debated it, voted on it, and gone home to campaign for it.

The language that House Speaker Schuyler Colfax used on the stump that summer was crystalline in its simplicity: citizenship belonged to “every person born under our flag.” Lincoln’s first vice president, Hannibal Hamlin, put it the same way: “every child born under our flag shall be an American citizen.” That is the flag test—soil below, flag above—and the men who framed the Amendment said it over and over, in speech after speech, newspaper after newspaper, across the nation. Nowhere in all that vast record does the word “parent” appear as a qualifier. Nowhere does “domicile.” These concepts, the authors note pointedly, are simply not in the text—and the framers conspicuously left them out.

Two words from 1957

Now flash forward nearly seven decades later, when the case for the Amendment’s original meaning was made with quiet finality, in a 1957 Supreme Court decision called United States ex rel. Hintopoulos v. Shaughnessy.

The facts of that case are almost comically pointed for our moment. A Greek couple, both of them illegal aliens—a “birth tourist” mother, an “anchor-baby” father, in the harsh MAGA parlance—had a son born on American soil. The Supreme Court, in an opinion by Justice John Marshall Harlan II—a Dwight Eisenhower appointee, a Princeton conservative, a justice revered by none other than Samuel Alito—said of the child: “The child is, of course, an American citizen by birth.”

Of course.

Not “arguably.” Not “probably.” Of course. Harlan wrote those words on behalf of six justices without pausing, without hedging, without even sensing that anyone could disagree—because at that moment in American constitutional history, no serious person did.

The two dissenters, Justices William O. Douglas and Hugo Black, agreed with Harlan and the Court’s majority (they differed on how the case should be resolved), writing: “The five-year-old boy was born here and, therefore, is entitled to all the rights, privileges, and immunities which the Fourteenth Amendment bestows on every citizen.”

Therefore.

This case has already been decided. It was decided in 1868. It was confirmed in 1957. The only question left is whether today’s Court will honor that settled truth, or bury it.

—Terry