The Law Professors Aiding Trump’s War on Birthright Citizenship

I will not bother to repeat how, unless you are the child of a foreign diplomat, there is no such difference in practical terms today. Instead it is sufficient to point out how he justified this conclusion. Lash, Wurman, and others argue that the Citizenship Clause did not represent some breach from the past but rather a continuity with it, and that it “brought the old soil,” so to speak, with it when the Fourteenth Amendment was ratified. That old soil, in this case, was an 1862 report by Attorney General Edwin Bates titled “On Citizenship,” where he addressed the citizenship of freed Black sailors who sought to command vessels.

In every civilized country the individual is born to duties and rights—the duty of allegiance and the right to protection; and these are correlative obligations, the one the price of the other, and they constitute the all sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, his country. In most countries the old law was broadly laid down that this natural connection between the individual and his native country was perpetual; at least, that the tie was indissoluble by the act of the subject alone.

I will set aside the preposterousness of holding that an attorney general’s opinion from 1862 carries more weight than the clear command of the Citizenship Clause enacted and ratified seven years later. As Bernick, Gowder, and Kreis point out, this interpretation doesn’t even work on its own terms because the attorney general himself explained that the threshold is nearly insurmountable.

“Bates identifies only one kind of exception to the general rule of birthright citizenship: ‘the small and admitted class of the natural born composed of the children of foreign ministers and the like,’” they noted. Bates, for the record, also concluded that the sailors in question were citizens by simple virtue of being born in the United States, Dred Scott be damned.