{"id":108572,"date":"2025-02-18T16:02:50","date_gmt":"2025-02-19T00:02:50","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/02\/18\/law-professors-try-to-defend-trumps-end-to-birthright-citizenship-it-does-not-go-well-for-them\/"},"modified":"2025-02-18T16:02:50","modified_gmt":"2025-02-19T00:02:50","slug":"law-professors-try-to-defend-trumps-end-to-birthright-citizenship-it-does-not-go-well-for-them","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/02\/18\/law-professors-try-to-defend-trumps-end-to-birthright-citizenship-it-does-not-go-well-for-them\/","title":{"rendered":"Law Professors Try To Defend Trump\u2019s End To Birthright Citizenship. It Does Not Go Well For Them."},"content":{"rendered":"
\"\"
<\/figcaption><\/figure>\n

I\u2019m going to offer some advice to liberals that, at first blush, may grate but you need to check out Reason. The libertarian blog features a piece<\/a> by Ilya Somin that slaps back at the idea that birthright citizenship as extended under the Fourteenth Amendment can be undone by executive order. Which isn\u2019t some wild, far-left theory \u2014 indeed, conservative darling Judge Jame Ho wrote that birthright citizenship can only be undone by constitutional amendment (of course, that was before birthright citizenship became the hobby horse of the Trump administration and Ho cravenly changed his tune on that one<\/a>). Donald Trump issued just such an EO on his first day back in office, and his administration is now dealing with multiple pieces of litigation as a result.<\/p>\n

In furtherance of this Trump administration policy, law professors Randy Barnett and Ilan Wurman took to the pages of the New York Times Op Ed. column<\/a> to lend the academic credibility of their positions to the Trumpian power grab. Barnett and Wurman rely primarily on an \u201callegiance-for-protection\u201d theory that predicates citizenship on a trade of one for the other they trace to an 1862 opinion by Attorney General Edward Bates. Yes, history buffs, you\u2019ll note the date of that opinion limiting birthright citizenship to those who have traded allegiance for protection is BEFORE the passage of the Fourteenth Amendment (that, of course, being the amendment that created the birthright citizenship right). Which seems like a pretty freakin\u2019 big red flag. And Somin further illustrates how dumb it is to use this theory to interpret the Fourteenth Amendment:<\/p>\n

\n

There are several flaws in Barnett and Wurman\u2019s \u201callegiance-for-protection\u201d theory. The biggest is that, if consistently applied, it would undermine the central purpose the Citizenship Clause: extending citizenship to recently freed slaves and their descendants. Slaves born in the United States (and their parents, who were also usually slaves) obviously weren\u2019t part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters.<\/p>\n

This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But the \u201csubject to the jurisdiction\u201d language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the child of a foreign diplomat doesn\u2019t get birthright citizenship if her parents later lose their diplomatic immunity. If being subject to US jurisdiction requires a compact trading allegiance for protection, former slaves obviously didn\u2019t qualify. Thus, the Barnett-Wurman theory would defeat the central purpose of the Citizenship Clause. That alone is reason to reject it.<\/p>\n<\/blockquote>\n

Really though, the Barnett\/Wurman piece is a bit of a feat as it\u2019s brought together legal scholars of all stripes to condemn it. Like conservative professor Michael Ramsey, who has written<\/a> extensively about birthright citizenship, who says<\/a> (pithily, imho) that the Bates opinion that the Barnett\/Wurman theory is based upon is of \u201conly marginal relevance\u201d to the analysis of originalism and the Fourteenth Amendment. Oh, and, Barnett\/Wurman misread Bates.<\/p>\n

\n
\n
\n

Professor Mike Ramsey, a conservative originalist who has forgotten more about birthright citizenship than maybe a handful of people will ever know, absolutely devastates Wurman and Barnett\u2019s misreading of primary sources. originalismblog.typepad.com\/the-original\u2026<\/p>\n

\u2014 Evan Bernick, a finite mode with a resolute floof (@evanbernick.bsky.social)<\/a> 2025-02-18T15:37:02.315Z<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

A more liberal law professor, Jed Shugerman, also has a lot to say<\/a> about the Barnett\/Wurman piece. He dug into the primary source in the article (the Bates opinion) and found Bates concluded in favor <\/strong>of birthright citizenship, \u201cThe most important point is that Bates did not propose anything like an allegiance theory for granting citizenship, and he actually endorsed the birthright basis \u2013 explicitly, and citing a half-dozen sources for the rule.\u201d<\/p>\n

Now you might think that this is an awful lot of attention paid to this 1862 Bates opinion in the rebuttal of the Barnett\/Wurman piece \u2014 but that\u2019s the thing, that\u2019s the primary historical source in the article. Oh, and they also cite Blackstone\u2019s Commentaries in support of their position. But Shugerman really nails them on this source \u2014 one of the \u201chalf-dozen sources\u201d Bates cites in support of the idea of birthright citizenship IS BLACKSTONE.<\/p>\n

\n

In the last few years, Blackstone has been cited by both sides of this debate. Barnett and Wurman claim Blackstone here for their allegiance-for-protection theory. But their own American source from the mid-19th century contradicts their use of Blackstone. Not only did Bates endorse birthright citizenship, he also told us that he considered Blackstone an authority for that position, too. It is more important in an originalist debate to understand how Americans of the 1860s understood Blackstone, and it turns out that Bates is at least a data point that Americans thought it was clear that Blackstone supported birthright citizenship. But Barnett and Wurman do not tell the reader that Bates not only rejected their theory, he also rejected their interpretation of Blackstone.<\/p>\n<\/blockquote>\n

LOLZ.<\/p>\n

Barnett has indicated on social media that he has MOAR! evidence to support his point, but, I\u2019ll leave it (again) to Shugerman to state the obvious.<\/p>\n

\n
\n
\n

Over at x, which I have mostly avoided since the election, Randy Barnett replied:”Bates has even more and better stuff supporting our position than we could mention in our op-ed.”So I replied:<\/p>\n

\u2014 Jed H. Shugerman (@jedshug.bsky.social)<\/a> 2025-02-16T22:04:02.524Z<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

None of this is great for the academic credibility of Barnett and Wurman. But it could easily result in an opportunity in Trumpland \u2014 they need folks willing to go the extra mile to make their harebrained legal theories stick.<\/p>\n

\n

\"\"Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast<\/a>, and co-host of Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email her<\/a> with any tips, questions, or comments and follow her on Twitter @Kathryn1<\/a>\u00a0or Mastodon @Kathryn1@mastodon.social.<\/a><\/em><\/strong><\/p>\n

The post Law Professors Try To Defend Trump\u2019s End To Birthright Citizenship. It Does Not Go Well For Them.<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

I\u2019m going to offer some advice to liberals that, at first blush, may grate but you need to check out Reason. The libertarian blog features a piece<\/a> by Ilya Somin that slaps back at the idea that birthright citizenship as extended under the Fourteenth Amendment can be undone by executive order. Which isn\u2019t some wild, far-left theory \u2014 indeed, conservative darling Judge Jame Ho wrote that birthright citizenship can only be undone by constitutional amendment (of course, that was before birthright citizenship became the hobby horse of the Trump administration and Ho cravenly changed his tune on that one<\/a>). Donald Trump issued just such an EO on his first day back in office, and his administration is now dealing with multiple pieces of litigation as a result.<\/p>\n

In furtherance of this Trump administration policy, law professors Randy Barnett and Ilan Wurman took to the pages of the New York Times Op Ed. column<\/a> to lend the academic credibility of their positions to the Trumpian power grab. Barnett and Wurman rely primarily on an \u201callegiance-for-protection\u201d theory that predicates citizenship on a trade of one for the other they trace to an 1862 opinion by Attorney General Edward Bates. Yes, history buffs, you\u2019ll note the date of that opinion limiting birthright citizenship to those who have traded allegiance for protection is BEFORE the passage of the Fourteenth Amendment (that, of course, being the amendment that created the birthright citizenship right). Which seems like a pretty freakin\u2019 big red flag. And Somin further illustrates how dumb it is to use this theory to interpret the Fourteenth Amendment:<\/p>\n

\n

There are several flaws in Barnett and Wurman\u2019s \u201callegiance-for-protection\u201d theory. The biggest is that, if consistently applied, it would undermine the central purpose the Citizenship Clause: extending citizenship to recently freed slaves and their descendants. Slaves born in the United States (and their parents, who were also usually slaves) obviously weren\u2019t part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters.<\/p>\n

This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But the \u201csubject to the jurisdiction\u201d language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the child of a foreign diplomat doesn\u2019t get birthright citizenship if her parents later lose their diplomatic immunity. If being subject to US jurisdiction requires a compact trading allegiance for protection, former slaves obviously didn\u2019t qualify. Thus, the Barnett-Wurman theory would defeat the central purpose of the Citizenship Clause. That alone is reason to reject it.<\/p>\n<\/blockquote>\n

Really though, the Barnett\/Wurman piece is a bit of a feat as it\u2019s brought together legal scholars of all stripes to condemn it. Like conservative professor Michael Ramsey, who has written<\/a> extensively about birthright citizenship, who says<\/a> (pithily, imho) that the Bates opinion that the Barnett\/Wurman theory is based upon is of \u201conly marginal relevance\u201d to the analysis of originalism and the Fourteenth Amendment. Oh, and, Barnett\/Wurman misread Bates.<\/p>\n

\n
\n
\n

Professor Mike Ramsey, a conservative originalist who has forgotten more about birthright citizenship than maybe a handful of people will ever know, absolutely devastates Wurman and Barnett\u2019s misreading of primary sources. originalismblog.typepad.com\/the-original\u2026<\/p>\n

\u2014 <\/div>\n

Evan Bernick, a finite mode with a resolute floof (@evanbernick.bsky.social)<\/a> 2025-02-18T15:37:02.315Z<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

A more liberal law professor, Jed Shugerman, also has a lot to say<\/a> about the Barnett\/Wurman piece. He dug into the primary source in the article (the Bates opinion) and found Bates concluded in favor <\/strong>of birthright citizenship, \u201cThe most important point is that Bates did not propose anything like an allegiance theory for granting citizenship, and he actually endorsed the birthright basis \u2013 explicitly, and citing a half-dozen sources for the rule.\u201d<\/p>\n

Now you might think that this is an awful lot of attention paid to this 1862 Bates opinion in the rebuttal of the Barnett\/Wurman piece \u2014 but that\u2019s the thing, that\u2019s the primary historical source in the article. Oh, and they also cite Blackstone\u2019s Commentaries in support of their position. But Shugerman really nails them on this source \u2014 one of the \u201chalf-dozen sources\u201d Bates cites in support of the idea of birthright citizenship IS BLACKSTONE.<\/p>\n

\n

In the last few years, Blackstone has been cited by both sides of this debate. Barnett and Wurman claim Blackstone here for their allegiance-for-protection theory. But their own American source from the mid-19th century contradicts their use of Blackstone. Not only did Bates endorse birthright citizenship, he also told us that he considered Blackstone an authority for that position, too. It is more important in an originalist debate to understand how Americans of the 1860s understood Blackstone, and it turns out that Bates is at least a data point that Americans thought it was clear that Blackstone supported birthright citizenship. But Barnett and Wurman do not tell the reader that Bates not only rejected their theory, he also rejected their interpretation of Blackstone.<\/p>\n<\/blockquote>\n

LOLZ.<\/p>\n

Barnett has indicated on social media that he has MOAR! evidence to support his point, but, I\u2019ll leave it (again) to Shugerman to state the obvious.<\/p>\n

\n
\n
\n

Over at x, which I have mostly avoided since the election, Randy Barnett replied:”Bates has even more and better stuff supporting our position than we could mention in our op-ed.”So I replied:<\/p>\n

\u2014 <\/div>\n

Jed H. Shugerman (@jedshug.bsky.social)<\/a> 2025-02-16T22:04:02.524Z<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

None of this is great for the academic credibility of Barnett and Wurman. But it could easily result in an opportunity in Trumpland \u2014 they need folks willing to go the extra mile to make their harebrained legal theories stick.<\/p>\n

\n

\"\"Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast<\/a>, and co-host of Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email her<\/a> with any tips, questions, or comments and follow her on Twitter @Kathryn1<\/a>\u00a0or Mastodon @[email\u00a0protected].<\/a><\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

I\u2019m going to offer some advice to liberals that, at first blush, may grate but you need to check out Reason. The libertarian blog features a piece by Ilya Somin that slaps back at the idea that birthright citizenship as extended under the Fourteenth Amendment can be undone by executive order. Which isn\u2019t some wild, […]<\/p>\n","protected":false},"author":3,"featured_media":108573,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-108572","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/02\/IMG_5243-1-scaled-e1623338814705-620x568-tCqKzs.jpeg?fit=620%2C568&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/108572","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=108572"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/108572\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/108573"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=108572"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=108572"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=108572"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}