Trump can only win his case by getting the Supreme Court to overrule its own precedent or reject its reasoning.

T o no one’s surprise, Donald Trump’s executive order seeking to challenge longstanding federal policy on birthright citizenship has landed immediately in the courts, where it was swiftly put on ice by federal judges in Maryland and Washington state. Trump’s effort faces daunting legal obstacles, but he at least may succeed in getting his argument before the Supreme Court.

I’ve explained before why I believe that the original public meaning of the citizenship clause of the 14th Amendment protects a broad right to birthright citizenship with only narrow exceptions. Those exceptions do not exclude from citizenship the children of illegal aliens. They most likely do not exclude the children of transients, either.

The existing birthright citizenship right is, in fact, broader than what I’d prefer if we were writing the clause today. It is also probably broader than many of its authors and ratifiers would have endorsed if they were enacting it under today’s conditions. But changing it requires amending the Constitution.

Today, I’ll confine myself today to the specific question of what the Supreme Court has, and has not, decided in this area. I’ll return later to the arguments for and against challenging those decisions.

The 14th Amendment provides that “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.” (Emphasis added.) The amendment passed Congress in June 1866 and was ratified in 1868. The question, for constitutional originalists, is what it was generally understood at the time to mean. Among the contending sides on this question, there are seven areas of general agreement:

First, the general phrase “All persons born or naturalized in the United States” is extremely broad. If it is not qualified further, it covers literally everyone born in the United States.

Second, any limitation to that general rule must be found in the phrase “subject to the jurisdiction thereof.” That was the core of the argument in the 19th century, and it’s still the core of the argument today.

Third, the central purpose of the citizenship clause was to ensure citizenship for black Americans, and specifically to overturn Dred Scott v. Sandford. The Supreme Court in Dred Scott ruled, very wrongly, that the Constitution was meant to permanently exclude black Americans, whether free or slave, from citizenship.

This was not a unanimous ruling. One of the two dissents (by Justice Benjamin Curtis, who shortly thereafter resigned in protest from the Court) argued at length that “it is a principle of public law, recognised by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights of citizenship,” and that this right of citizenship by birth had long been understood to include black Americans. The Curtis dissent was much quoted and paraphrased by Abraham Lincoln and other Republicans in 1858–60, but the Dred Scott majority opinion was still the law unless and until overturned by the Court or overruled by constitutional amendment.

Fourth, once the Republican Congress focused on the definition of citizenship, it decided — as it did throughout the 13th, 14th, and 15th Amendments — to write in broad language not specific to any racial category. Thus, while the 14th Amendment should be read with an eye to its intended core purpose, it was never meant or understood to grant rights only to black Americans. It instead aimed to define the parameters of American citizenship by birth.

Fifth, this was the second crack at this question in the same Congress. Congressional Republicans previously attempted to extend citizenship to black Americans in the Civil Rights Act of 1866, which provided that “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The resistance to this effort, including a veto message by President Andrew Johnson declaring the act unconstitutional, persuaded congressional Republicans to enshrine their definition of citizenship in the Constitution itself. There was not a Republican majority on the Supreme Court until mid-1867, so the survival of the Civil Rights Act was a real concern.

Sixth, the original Constitution never defined citizenship. It referred in several places to American and state citizenship, including requiring the president to be “a natural born Citizen,” but aside from empowering Congress to establish “an uniform Rule of Naturalization” for immigrants, it left unstated exactly who is a citizen or who gets to define citizenship. These remained contested questions in 1866. For a good deal of the originalist scholarship, as in Dred Scott and as in cases interpreting the citizenship clause of the 14th Amendment, it is important to understand what Americans believed about citizenship before 1866.

Seventh, immigration law was very different in the 1860s, when nearly half of the country remained unsettled frontier needing to be populated. While immigration was not completely unrestricted, the first law limiting who could enter the country was the Page Act of 1875, and the documentation of immigration status didn’t exist until the 20th century. It was not uncommon for people to just invent new identities upon arriving in the United States. Thus, while nativism and hostility to mass immigration were major features of American politics in the 1790s and the 1850s, concepts such as illegal immigration and lawful permanent resident status were not even in the congressional vocabulary in the 1860s. On the other hand, in the age before air travel, it was relatively rare for people to make short trips through the United States, and very arduous for pregnant women to do so if they did not intend to establish a permanent residence here.

There are two primary theories of what “subject to the jurisdiction” of the United States means. One theory (to which I subscribe) is that it only excludes from birthright citizenship those children born to parents who are largely beyond the reach of American law and thus are not subject to the full jurisdiction of the laws of the United States. The short, specific list of categories of people immune from the reach of many American laws — Native Americans, foreign ambassadors, foreign royalty, and uniformed soldiers of foreign armies — was much discussed in the 1866 congressional debates.

The alternative theory, pressed by the Trump administration and its allies, is that “subject to the jurisdiction” implies a deeper bond of reciprocal loyalty. In this view, one is subject to the jurisdiction of the United States only if one is not subject to any loyalty to other nations and if one has been legally permitted to settle here. Jurisdiction, in this telling, is not a description of the government’s power but a theory of citizenship. For example, under this approach, a person is fully subject to American jurisdiction if, when traveling abroad, they would be entitled to call upon the protections of American law — civis Americanus sum.

There are a number of subsidiary disputes. English law, and the law of numerous other monarchical societies, followed jus soli, or the law of the soil: If you were born within the kingdom, you were the king’s subject for life. Others followed jus sanguinis, the law of the blood: Your parentage determined your citizenship and that of your descendants. Because both of these were theories of permanent allegiance that left no room for renunciation of citizenship, neither of these bodies of law was fully incorporated into American law. The right to renounce one’s prior allegiance was always fundamental to the law of a republic founded upon rebellion against the king, whose Constitution provided explicitly for naturalizing as citizens people who had previously been subjects by land or by blood of foreign princes.

The Supreme Court first dealt squarely with the citizenship clause in Elk v. Wilkins (1884). The case involved John Elk, a Native American born to an unspecified tribe and settled in Omaha. Elk argued that by renouncing all allegiance and relation to his tribe and submitting himself to the jurisdiction of the United States, he was entitled to claim birthright citizenship.

The result was a 7-2 ruling against Elk’s claim of citizenship, written by Justice Horace Gray, a Chester Arthur appointee known for his scholarly approach to the law. On both the Massachusetts supreme judicial court and the Supreme Court, Gray was the first justice to hire a law clerk to assist him in research. His first clerk in Massachusetts was Louis Brandeis, later a Supreme Court justice in his own right. Gray did not always distinguish himself: In 1896, he joined the 7-1 majority opinion in Plessy v. Ferguson that upheld the Jim Crow doctrine of “separate but equal.”

Elk rested on two pillars. First, the Court noted that Elk could not mix and match sources of citizenship: If he was born a tribal citizen, regardless of whether he later renounced the tribe, he could only seek to be naturalized, not retroactively separated from tribal citizenship as of his birth: “The distinction between citizenship by birth and citizenship by naturalization is clearly marked” in the text.

Second, Native Americans were seen as sui generis, their own category, in 1787 and in 1866 (and remain so in American law today) on the theory that the tribes constituted sovereign nations within our national borders, neither fully American citizens nor foreigners. Congress would extend citizenship to Native Americans by statute in the 1920s, but it remains only a matter of statutory law, not secured by the Constitution. Justice John Marshall Harlan, famously the lone dissenter in Plessy, dissented in Elk, complaining that the 14th Amendment was never intended to create “in this country a despised and rejected class of persons, with no nationality whatever; who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the States, to all the burdens of government, are yet not members of any political community nor entitled to any of the rights, privileges, or immunities of citizens of the United States.”

The Court disagreed, citing the particular nature of Native American tribes:

Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.

Trump’s legal argument tries to make an ally of the Elk opinion, citing the passage immediately preceding this one:

The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. . . . Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized. . . . (Emphasis added).

Trump also cites Elk’s references to the purpose of the citizenship clause to “put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the State in which they reside.” (Emphasis added.) But foreign powers were not at issue in Elk. Gray’s analysis looked at the historic treatment of the tribes (such as the exemption of their members from taxation and tabulation in the Census) to define them as “not, strictly speaking, foreign States; but they were alien nations, distinct political communities” who “were not part of the people of the United States.” No other such separate, permanent, pre-existing nations are recognized within the United States.

More to the point, the Court had a subsequent opportunity to apply the same language to the American-born child of actual foreigners.

Two years after Plessy, with seven of the same justices still on the Court, Gray wrote the majority opinion in United States v. Wong Kim Ark (1898). Wong Kim Ark did not involve illegal immigrants or brief transients to the country, but it is not so easily brushed aside.

Wong Kim Ark was born in San Francisco in 1873. His parents were at all times Chinese citizens (subjects of the emperor under Chinese law), but they were settled residents of San Francisco for years until they returned home in 1890. Having entered the country prior to the Chinese Exclusion Acts, there was no legal bar to them living in the United States. This being the 19th century, that was all that was required. Wong Kim Ark never lived anywhere but the United States. He made two trips to visit China at age 17 and age 21, at a time when it was illegal for Chinese citizens to enter the United States; he was allowed back into the country the first time, but was refused reentry the second time, sued to establish citizenship, and won.

The Court’s 6-2 majority opinion was again written by Justice Gray. It is lengthy and scholarly, tracing English legal authorities back as far as 1343. Wong Kim Ark cited five separately headed reasons for concluding that the American-born child of a Chinese subject was entitled to birthright citizenship.

First, a “fundamental principle of the common law with regard to English nationality was birth within the allegiance,” which was

not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were, therefore, natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King.

Both the majority and the dissent cited an 1869 English opinion concluding that this rule had traditionally applied “whether the parents were settled, or merely temporarily sojourning, in the country.”

Second, “The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.” Gray’s massing of Supreme Court cases, opinions of various attorneys general and commentators, and other authorities included many quotes from Justice Joseph Story, including a concurring opinion from 1830 stating that “nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” The majority also cited Curtis’s Dred Scott dissent defining “natural born Citizen” in the Constitution to “undoubtedly” refer to “that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.” As Gray concluded: “That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution.”

Third, the Court found “little ground for the theory that, at the time of the adoption of the Fourteenth Amendment . . . there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion,” and no support in pre-1866 immigration legislation for “the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty.” Gray noted that Congress had explicitly provided for children born to citizens abroad to be “considered as natural-born citizens,” which would be unnecessary if place of birth was not the default rule, but that it had not extended this beyond the first generation abroad.

Fourth, “In the fore front, both of the Fourteenth Amendment . . . and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.” The Court concluded that the citizenship clause “was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption.” That led to the Court’s specific interpretation of the key language:

The real object of the Fourteenth Amendment . . . in qualifying . . . by the addition, “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law,) the two classes of cases — children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State — both of which . . . by the law of England, and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

In explaining the theory of these exceptions, Gray walked through the Court’s opinions back to Chief Justice John Marshall’s opinion in Schooner Exchange v. M’Faddon (1812), a case exempting foreign warships from the jurisdiction of American courts:

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. . . . All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself.

The Wong Kim Ark majority drew from these “incontrovertible principles” that “the implied license, under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants, for purposes of business or pleasure, can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found.” The Court then concluded:

The words “in the United States, and subject to the jurisdiction thereof,” in the first sentence of the Fourteenth Amendment . . . must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange; and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words, “out of the limits and jurisdiction of the United States,” as habitually used in the naturalization acts.

This presumption is confirmed by the use of the word “jurisdiction” in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” It is impossible to construe the words “subject to the jurisdiction thereof,” in the opening sentence, as less comprehensive than the words “within its jurisdiction,” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.”

Fifth, reviewing the congressional debates on the citizenship clause, the Court noted that the children of Chinese immigrants in California had been specifically discussed as a potential objection to birthright citizenship. The majority found that “It does not appear to have been suggested, in either House of Congress, that children born in the United States of Chinese parents would not come within the terms and effect of” the citizenship clause. Congress could, in the Court’s view, bar or expel Chinese aliens, “but citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution” and could not be taken away by Congress.

Chief Justice Melville Fuller dissented in Wong Kim Ark, joined by Harlan. He made many of the same arguments raised today against the majority opinion. He cited the same passage from Elk that Trump cites. He argued that American law had never fully embraced jus soli because it rejected the idea that citizenship could not be renounced. He complained that it was

unreasonable to conclude that “natural-born citizen” [in the original Article II] applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.

It’s not really possible to read Fuller’s dissent and come away concluding that somehow Gray’s tome-like opinion had overlooked these arguments. The majority just disagreed with them.

Plyler v. Doe

The other major and oft-cited precedent in this area is Plyler v. Doe (1982). Plyler, however, does not really get either side of the argument very far. The Court in Plyler struck down a Texas statute that denied public education to illegal immigrant children. The Court first held that an illegal immigrant is a “person within [a state’s] jurisdiction” protected by the equal protection clause of the 14th Amendment. This was uncontroversial and unanimous; even the Court’s lone conservative, Justice William Rehnquist, agreed. But that doesn’t mean much: Illegal immigrants obviously are persons, and they obviously are within a state’s jurisdiction — at least, if one uses the word in its natural sense of being subject to its laws. The Court didn’t get into the question, which Wong Kim Ark had already settled, of whether “within its jurisdiction” meant something different in the equal protection clause from what “subject to the jurisdiction” meant in the citizenship clause. Where the Court divided 5-4 in Plyler was whether it was rational or invidious to distinguish illegal residents from citizens in providing government benefits such as public education. But nothing in the case addressed birthright citizenship.

Undistinguished

Trump’s brief dismisses Wong Kim Ark on the grounds that “the only question that was presented, investigated, and resolved in Wong Kim Ark concerned children of parents with ‘a permanent domicile and residence in the United States.’. . . The case should not be read as doing anything more than answering that question.” The Wong Kim Ark opinion’s discussion of what the language of the 14th Amendment means is dismissed by Trump’s lawyers as “dicta” that “never purported to overrule any part of Elk.”

But this is backwards. The Court’s explicit and lengthy discussion in Wong Kim Ark of the meaning of the words in the constitutional text are not “dicta,” as lawyers call stray remarks in an opinion that aren’t necessary to the disposition of the case. That discussion forms the reasoning of Wong Kim Ark. It’s Elk that uses unnecessary flourishes, and Justice Gray, who wrote both opinions, explained in Wong Kim Ark that it was the former case that should be read as being irrelevant to the birthright citizenship of the children of immigrants:

The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent, not in the diplomatic service of a foreign country.

Now, the Supreme Court can always overrule its own prior decisions. It can also decide that they reached the right result by the wrong reasoning, and thus limit them to their facts. But only the Court has that power, short of a constitutional amendment overriding its precedents. Make no mistake: If Wong Kim Ark read the language of the 14th Amendment correctly, then Trump’s executive order is unconstitutional. No lower court could responsibly rule otherwise. Trump’s only recourse is to go straight to One First Street.