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Next week, the Supreme Court will hear oral arguments in the first case to test Donald Trump’s attempt to change the meaning of the 14th Amendment so that the United States no longer recognizes what’s known as birthright citizenship. On this week’s Amicus podcast, Dahlia Lithwick spoke to the University of Virginia’s Amanda Frost, author of You Are Not American: Citizenship Stripping From Dred Scott to the Dreamers. Frost is currently working on a book exploring the history of birthright citizenship, including the decision by the drafters of the 14th Amendment to enshrine in the Constitution the somewhat radical notion of birthright citizenship. The Reconstruction Amendments, Frost notes, were not just an attempt to cure what was most appalling about the Dred Scott decision, but a codified hope for a uniquely American notion of what citizenship signifies and what it seeks to eschew. Their conversation, which has been edited and condensed for clarity, is below.

Dahlia Lithwick: The U.S. Supreme Court, as currently constituted, has a majority composed of jurists who say they are committed to this project of “originalism.” While we generally try to avoid the question of “Is this good originalism?” on Amicus (readers can revisit our special series from last year to understand why), what is the best possible originalist reading of the birthright citizenship provision in the 14th Amendment as drafted in 1868? Can you try to put on an originalist hat and tell me the best argument from the other side in these cases?

Amanda Frost: First, as a threshold matter, I love the birthright citizenship provision in the citizenship clause because every method of constitutional interpretation supports the universalist view—that almost everyone born in the United States is a citizen, with a few narrow exceptions—and that includes the original understanding approach.

But I think your question is: What’s the best originalist argument for opponents of the universalist view of birthright citizenship, in support of the Trump administration’s exceedingly narrow view of who gets citizenship at birth? I’m going to do my best to describe the arguments that I see being made in the Trump administration’s briefs, which, I will say, are not entirely coherent.

I’m a law professor. I’m very comfortable with articulating legal views I don’t agree with, for the purpose of explaining them to students and making sure everyone understands every legal position out there. I do that regularly when I describe Supreme Court cases I don’t necessarily agree with but nonetheless are the law of the land. I have trouble articulating the Trump administration’s arguments in favor of this restrictive view of birthright citizenship. I don’t think they make a ton of sense, but I will do my best.

The citizenship clause states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens of the United States. The Trump administration is arguing that the phrase subject to the jurisdiction thereof carves out both children of undocumented immigrants and children of lawfully present but temporary immigrants and says they are not citizens. The administration argues that jurisdiction doesn’t mean just regulatory jurisdiction—that’s the power to legislate or enforce laws against these people. They concede that undocumented immigrants and lawfully present immigrants have to follow the law. They say, in this case, that jurisdiction means “political jurisdiction,” and political jurisdiction requires that you have “complete allegiance.” That’s their language: complete and total allegiance to the United States. The word allegiance appears nowhere in the citizenship clause, but that’s what they say it means. The administration argues that this is what the Reconstruction Congress intended it to mean, and then they say that if you enter the U.S. illegally or overstay your visa because you violated our laws, you don’t have “allegiance” to the United States.

They also argue that temporary immigrants don’t have allegiance to the United States. This is where I have trouble following their argument. They have a couple of quotes here and there, stray language from the Reconstruction Congress’ debates that they use to try to shore up that argument, and the last argument they make using a claim to original understanding is that in order to be “subject to the jurisdiction thereof,” you have to be domiciled in the United States, which means you intend to remain permanently and make it your home.

Almost everything you’ve said just now feels wildly ahistoric to me. If I were approaching this as if I’m just a textualist, I’m an originalist … this feels like quite an attenuated set of arguments about plain text in the Constitution with respect to what we actually know about the intent.

Yes. Many of these words that they’re now using appear nowhere in the text. Nowhere does it say anything about “allegiance.” Nowhere does it say anything about “domicile.” Those are words that were known to that Congress, but they didn’t use them in this sentence, so a textualist should have a real problem with that interpretation. In terms of original understanding, there are so many problems with this argument. First and foremost, the Reconstruction Congress wanted to create a clear rule on citizenship. It had just emerged from the Civil War, precipitated in part by the Dred Scott decision, which had denied citizenship to all Black people in the United States, whether free or enslaved, and to anyone who was deemed subordinate or inferior, which left a lot of people’s citizenship in question. The Reconstruction Congress wanted to end any questions about citizenship. So, in 1866, Jacob Howard, the senator who introduced the citizenship clause language, said his proposed language, which is now in the Constitution, “removes all doubt as to what persons are or are not citizens of the United States.” He thought this was crystal clear. He wasn’t saying: “We should now have a test of allegiance, case by case. Who has allegiance? Which groups do? Which groups don’t?” No, he had the opposite view.

We have another senator, Benjamin Wade, who said: We need to fortify this language of citizenship, make it very strong and clear. And then he said—and this is so prescient—because there’s a “danger that when party spirit runs high, this provision may receive a very different construction from that which we would now put upon it.” He’s foreseeing a future in which a Donald Trump is elected and starts questioning people’s citizenship. And he’s saying, Let’s make this provision so crystal clear that this can’t happen. I think it is as clear as you could possibly make it. And I think that that’s why the Trump administration’s legal arguments are made up out of whole cloth and incorporate words and language that no one used or put in the text.

One argument that the Trump administration and their supporters make is that the Reconstruction Congress didn’t intend for the citizenship clause to apply to the children of undocumented immigrants. The administration claims that the Reconstruction Congress didn’t intend this because they had no idea there was such a thing as an undocumented immigrant, or an “illegal alien,” because they didn’t exist in 1866.

That’s just wrong as a factual matter. The Reconstruction Congress was well aware of the fact that there were many people living in the United States in violation of immigration laws, such as laws prohibiting the importation of slaves. Enslaved persons and their progeny were certainly meant to be included as birthright citizens. And yet, there were laws barring importation of slaves after 1808, and they were violated. The Reconstruction Congress well knew this. It had legislated on that very issue. There were also people who came temporarily to the United States as tourists and as visitors, and, again, the Reconstruction Congress did not carve out the children of those immigrants for exclusion from the citizenship clause. So we should not assume today that they simply overlooked those groups.

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There is this oft-repeated claim that the United States is an outlier, one of just 30 countries—or even, in Trump’s telling, the only country—that afford birthright citizenship. But I’m hearing you say that the Reconstruction Congress chose this expansive view of citizenship by design?

Yes, there are 32 other countries that have what I’ll call the universalist automatic birthright citizenship rule that the United States has included. Among those, by the way, are Canada and Mexico. Many of the countries that have this rule are in the Western Hemisphere, so we’re not alone.

However, it is an unusual rule, at least as compared to Europe, which has abandoned the universalist view of birthright citizenship. Although I will add that they do still give very liberal citizenship. So if, for example, you’re born to undocumented immigrants in France, that child is not automatically a citizen at birth, but they are automatically a citizen at age 18 if they lived in France for at least five years. So it’s actually a far more liberal rule than the Trump executive order.

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But, putting that aside, this is what Eric Foner, the great historian, has said is the “good kind” of American exceptionalism. It is true that America adopted and embraced this full-throated universalist view of birthright citizenship, because it comports with our values. We are a nation that, from its founding days, said: We reject an inherited monarchy. Our Constitution says we reject titles of nobility. We have a provision in our Constitution that rejects the idea of corruption of blood, meaning that we don’t punish the child for the sins of the parent. And I think that is uniquely and so importantly American. Each generation starts anew, equal with everyone else—we don’t look to your parents’ status or title to decide your merit. That’s one of the great values of our society. It’s something that has made our nation strong. It’s something that has helped us integrate immigrants and their children into our country better than Europe has done, for sure. And that’s why, I think, this assault on birthright citizenship is very intentionally an assault on what it means to be an American—and, I think, also an assault on our values as a country.

The meaning of American is: If you’re born here, you are one of us. And I love that definition. That’s what the Reconstruction Congress wanted, and I hope that’s what we come to embrace as a nation after this fraught moment.

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