Donald Trump’s executive order purporting to end birthright citizenship for the children of undocumented immigrants and temporary visitors is flagrantly unconstitutional. It defies over 120 years of Supreme Court precedent, as well as the clear command of the Fourteenth Amendment’s text. It deserves exactly the kind of dismissive response that it received from 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 that 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. (For the record, Schuck has expressly rejected the constitutionality of any anti-birthright executive order and indeed suggested that no “competent lawyer” would 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 decades of devastating criticism. 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’s categorical 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—the 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, it was made part of the Fourteenth Amendment because the abolitionists who shaped Republican 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, 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 of citizens of the 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 of the 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 upheld the constitutionality of the Fugitive Slave Act of 1793, abolitionists rejected its reasoning outright and resisted slave-catchers through means ranging from freedom suits to liberate alleged fugitives to armed insurgency. 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 of 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 against 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 which 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, 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, which asserts 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 domination becomes 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 about whether the administration considers Native people to be United States citizens. Reports that 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 is defined by unchecked power over racialized populations which are deemed unfit to govern themselves. Scholars who suggest that 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.
