Birthright Citizenship and the Future of the Fourteenth Amendment

0:00This would have been a moment and should have been a moment in my opinion of a full-throated endorsement of, well just frankly, of the Constitution. This is, when it comes to text, when it comes to original public meaning, this seems like one of the clearest cases that one could conceive of.

0:26This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way, you'll have access to all our new episodes as soon as they're available. Well, I think throughout this term at the Supreme Court, we've been waiting for the decision that came down today that I'm going to discuss with my colleague, Fred Smith. Fred is a professor here at the law school. He focuses on issues of federal courts and issues of civil rights more generally, and also focuses on the kind of historical context behind a lot of the most important constitutional law decisions and the like.

1:10So welcome to the show, Fred. It's an absolute pleasure to be here. So today, the Supreme Court came down with its decision in the Trump against Barbara case. This is a case that started out in a sense as a Fed court's case about nationwide injunctions, but then turned into a case really about what the first sentence of the 14th Amendment means. That first sentence reads that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and citizens of the state where they resided. And I think maybe the place for us to start, Fred, is with why we have that sentence in the 14th Amendment in the first place.

1:53Sure. And all of the justices seem to agree on how it got there, which is Dred Scott, right? likely the most notorious decision in the history of the Supreme Court. And in particular, Dred Scott's ruling that because the African race had no rights that the white man was bound to respect at the founding, that people of African heritage categorically could not be citizens. And so when it came to the post-Civil War era, it was important not only to eradicate chattel slavery through the 13th Amendment. And it was important not only to note that people had equal protection under the law, but the very first line of the amendment is birthright citizenship attempting to overturn Dred Scott.

2:44Right. And I think the assumption since then has been that people who were born in the United States were citizens from birth unless they fell into one of a couple of very small categories. So for example, children of diplomats who are born in the United States. If your father is the ambassador from, you know, Great Britain, and you're born here, you're not a citizen. Children of invaders were not citizens. And then there was this kind of controversial question about whether people born in the United States who were also members of Indian tribes were citizens or not. But other than that, the assumption was, if you were born here, you were a citizen.

3:22And I think that's been the assumption really until quite recently, when Donald Trump issued an executive order that purported to say that from that date forward, anyone born in the United States who did not have a parent who was either a U.S. citizen or a legal permanent resident, that is a kind of green card, was not a citizen. So if you were born in the United States and your parents were undocumented, you're not a citizen. If you were born in the United States, and your parents were graduate students, say, at Stanford, who were here on visas, student visas. You were not a citizen or the like.

4:00Where did that idea come from? Yeah, so the court today, the majority tells a quite compelling historical story. Part of that story goes back actually all the way to the early 1600s, an English case called Calvin's case, which was about an individual who was born in Scotland. And the question was whether or not he was a subject of the English crown and entitled to the benefits that flowed from being said subject. And this idea that one is a citizen of the place where they are born is part of the English common law tradition that's picked up by the United States later. And we know this in part because of an opinion from the attorney general during the Civil War, which is cited by today's majority opinion.

4:54It relies in part on Calvin's case for the proposition that this is just this has long been the common law rule, both in England and in the United States. And the majority cites to a number of senators when it came to the adoption of the 14th Amendment, who expressly stated that they were attempting to simply ratify what was already the law before Dred Scott. And so this has long been a deep tradition. And I agree that until quite recently, not only was this the widely shared legal understanding in the most conventional sense, but it's kind of become a part of our constitutional character. Yeah.

5:39And this kind of English common law tradition stands in some contrast to the continental tradition, which was one of what was called usanguinous. That is, citizenship came by blood. And earlier, when you were talking about the notorious Dred Scott case, Dred Scott was essentially trying to take a usanguinous view of citizenship, right? If you had to have white blood to be a citizen, otherwise you couldn't be a citizen. The 14th Amendment really is a kind of repudiation of that idea and a kind of resuscitation isn't quite right, but a kind of recommitment to the idea of you solely. Where you're born determines your citizenship.

6:21If you're born here, you're a U.S. citizen. And I guess one of the things I thought was really quite striking about today's decision was essentially on the constitutional question, it was five to four. Yeah, that is very striking. So, I mean, part of Kavanaugh's point, which I'm sympathetic to, is the idea that if you can resolve it on the statutory grounds, why approach the, why go to the Constitution? but this would have been a moment and should have been a moment in my opinion of a full-throated endorsement of well just frankly of the constitution this is when it comes to text when it comes to original public meaning this seems like one of the clearest cases that one could conceive of and it's backed of course by precedent right so even if one even had some questions about about the text.

7:16Yeah. So, I mean, the precedent, I think, you know, obviously the biggest precedent in U.S. law is Wang Kim Ark, which was about a young man who was born in the United States to Chinese parents who were subjects of the emperor of China, who were ineligible because of racist immigration laws ever to become citizens. And yet the Supreme Court held he was a citizen of the United States because he was born here. But the precedent in Wang Kim Ark is he's a citizen of the United States, regardless of whether his parents could be citizens of the United States, because he was born here. And Justice Kavanaugh's concurrence and dissent essentially says, well, in 1940, when Congress passed a statute, which uses the same words that the 14th Amendment uses, they understood Wong Kim Ark to mean somebody would be a citizen if they were born here.

8:09And he says, but, you know, times have changed. And the times have changed thing, also in Justice Alina's opinion, seems to be, well, now we have a lot of people who are in the country who are undocumented, and they shouldn't be here at all. So why should children born to them be citizens of the United States? I just find that a kind of puzzling argument. Yeah, no, it's quite a tricky opinion, right? Because, all right, so firstly, as noted, right, he begins with, this can be resolved on statutory grounds that should have ended there, right? So he could have ended his opinion there, too, for that exact same reason, right?

8:45Yeah. And then he moves on to say, well, but I don't think that Wong Kim got the 14th Amendment right, right, and that this was a closed set as such. And then, but then to your point, right, but, but, right, the other, his opinion about the statutory point depends on what the longstanding understanding of Wong Kim Ark was. So there's quite a number of moves, and it probably would have been wiser if he believed that the statutory opinion resolved it for him to have simply said that. He almost seems to be inviting Congress. It almost seems to be inviting there to be a political battle over who should be a U.S.

9:25citizen, because obviously, if you kind of add him to the three dissenters, Justice Alito, Justice Thomas, and Justice Gorsuch, you're like right on the precipice of arguments about whether the Constitution actually provides for birthright citizenship or whether Congress or it for the dissenters are going to be a political party. seemingly even the president can just kind of decide. Yeah, that's right. I mean, and he says that he thinks that this is something that Congress could overturn. Whether or not he could get enough votes on that question, well, we know he couldn't today because... Right, but, you know, if it's five to four, it starts to look Roe versus Wade-ish.

10:11Sure, right, where it's just one change. This should be a litmus test for judges or nominations. It turns something that I think would have been thought really outside the box. I think the Jack Balkan line is, this has gone from something that's off the wall to on the wall. Sure. Yeah, that has certainly happened. I think if there's an opinion that surprises me at least as much, if not more, than Justice Kavanaugh's, actually, multiple of these opinions surprise me, but I'm going to go to Gorsuch. And I'll go to Gorsuch because he says he essentially, he doesn't doubt the correctness of Wong Kim Ark.

11:01He notes that if this were a case that was brought as an as applied challenge instead of being brought as a facial challenge, then maybe this comes out differently. He suggests that it's kind of inconceivable that under Wan-Kem-Arc that there should be people who, what about people who wouldn't be domiciled anywhere? Right. And that just, that can't, that's a conclusion that would flow from the government's position and it doesn't make sense. And yet, despite saying all of that, he simultaneously agrees with Justice Thomas about the original public meaning of the 14th Amendment. So there's this way in which his view of what Wong Kim Ark requires and his view of original public meaning, they conflict.

11:54And usually when that happens, you resolve them in some way you pick and his opinions don't land on a clear resolution. Yeah, I mean, I think maybe we should step back one step and sort of lay out how many opinions there were here. The chief justice's opinion, which is an opinion for the court, it's got five votes behind it. Then there's a concurrence from Justice Jackson, part of which Justice Sotomayor joins, that's a response to Justice Thomas's dissent. Then there's Justice Kavanaugh's opinion concurring in the judgment, but on statutory grounds and suggesting that as a constitutional matter, Congress might be free to restrict birthright citizenship beyond the kind of Wong Kim Ark categories of diplomats, invaders and tribal members.

12:51Then there are three dissents. Justice Thomas's dissent, I think, is joined by Justice Alito. It's joined by Justice Gorsuch. Justice Gorsuch. Justice Alito has a dissent, and then Justice Gorsuch has a dissent. So there's a lot of writing here to kind of wade through, although the bottom line for now is quite clear. One of the things that's always kind of puzzled me, and I wonder what you think about this, is the executive order, which is what's actually being challenged here, had three pieces to it that I thought were sort of interesting and tricky in a way. Right. One was that it was just prospective.

13:35It was direct. It was not saying that people who had been born in the United States to undocumented parents or to parents who were temporarily here were not citizens, but just going forward from a point in the future. A second thing about it was that it purported to deal with two groups of people, right? One was people whose parents were not legally present in the United States at all, undocumented people. But the other was people who were legally present in the United States. Some of them, for example, graduate students or people who are here on the specialized visas that often go to technical workers or to other folks who are in the United States for labor market reasons, might be here for years.

14:23If you're doing a PhD at Stanford, you might be, you know, or even worse, you're doing a humanities PhD somewhere in the United States. You might be here for seven or eight years. And those are your prime childbearing years for a lot of folks as well. You're legally present in the United States. And I just kind of wondered, what do you make of how those complexities feed into this question about birthright citizenship? Yeah. Well, one thing that's actually striking about Justice Gorsuch's position is that it seems to, between the category two and category three, there's ways in which it's more sympathetic to category two.

15:02Because he says that the mere fact that someone's unlawfully present doesn't mean they're not domiciled here. Well, some people who have been unlawfully present have been here for 20 or 30 years. Exactly, exactly. Right. And so that's it's just it's a striking consequence, because when you hear the three categories, you might think that the lawfully present one is the one where maybe the court or maybe, you know, the justices might be more sympathetic. But interestingly, Justice Gorsuch lands on particularly singling out the possibility that people could be domiciled here and not and not lawfully present.

15:41Yeah, which I thought was interesting. I sort of had wondered when the administration put out this executive order, whether they were kind of hoping to get a split the baby sort of decision out of the court. On the other hand, Justice Alito seems not to not to understand at all that lots of people who are, quote unquote, visitors to the United States are actually people who've been invited here. Sure. With the approval of the government. I mean, he seems to have this image that what this is, is a whole lot of people who are, you know, eight, eight and two thirds months pregnant, flying to the United States, having a baby, then taking the baby back to some other country.

16:23And then he has this whole kind of fear of a fifth column, right, that people will have their babies in the United States and these babies are going to have obligations to another country and be our enemies. But that's true even of people who are born to citizens in the United States if their parents are dual nationals. Yeah, it certainly proves too much. And the fact that I think it's birth tourist is the term that it appears, as I recall, it appears in the first paragraph of the opinion. And so it gives you a clue of where you're going and what he is concerned about. He raised that question at oral argument as well.

17:06And he gave an example of someone from Iran who has a child here, etc. But the problem with the question and the point is that it's hard to know what the animating principle is and where it applies and where it doesn't. So it doesn't just apply to the Iranian. It applies, as you put it, to other, including American citizens. It would apply to anybody whose mother, say, is a U.S. citizen and their father is an Iranian citizen. That's true. Iran might take the position that child is Iranian and owes a duty of serving in the Iranian military and the like. And that would be true even for somebody that I think he would concede has to be a birthright citizen.

17:51So it just it struck me as a tremendously kind of xenophobic way of talking about children. Yeah, I mean, on that, I mean, Justice Alito has a particular sensitivity to being called anything that resembles bigotry, etc. Yeah, I mean, we had earlier in the last week, we had the immigration case involving temporary protected status. Right. And the question of whether the president's incredibly incendiary remarks about Haitians who have temporary protected status was relevant to whether the president enacted constitutionally. And Justice Lea said, oh, we shouldn't be talking at all in this way. you know this is just this is just ordinary politics and then he almost does the same thing here with the you know this idea of this fifth column of birth tourists coming to the United States to have their babies here so their babies could come back to the United States as a fifth column at some later date and there's just no empirical support for that yeah no it's uh It's striking.

19:03And, you know, he wrote alone. So maybe there's some comfort in that. So what did you make of the Justice Jackson concurrence, which is a response to Justice Thomas's dissent, joined in part her concurrence by Justice Sotomayor, what you made of that decision? Yes, right. And so as you note it, kind of because of the order of the opinions, hers comes before Justice Thomas's, right? But you read it and you're like, oh, something very interesting is about. Yeah, something is happening here. Right. And it's really kind of a debate of sorts between the two Black justices on the Supreme Court about what the 14th Amendment is about.

19:47And one of the point, one of the kind of the earlier points of it, I guess actually it's impossible to do this without starting with Justice Thomas, even though it's different. Yeah, it's hard to say. Let me tell you what my response to you is about their response. Yeah. Right. So Justice Thomas says that the first provision of the 14th Amendment was about freedmen specifically. It was about overturning Dred Scott. And therefore, because it was about overturning Dred Scott, it was about making freedmen citizens. That's it. and that it shouldn't be repurposed for something else. It's quite striking in that it's not this kind of race-neutral way of viewing what our colorblind...

20:44Yeah, it was like two weeks ago when it was our Constitution is colorblind, and now he's saying, no, no, this provision of the Constitution is not colorblind at all. This provision is about black freedmen and that's it. Right, right. And so, you know, I think that was surprising to Justice Jackson, who has kind of really staked out a space as being a justice who understands the 14th Amendment to be an anti -caste, anti-subordination provision. one that could allow for some degree of race consciousness in order to stamp out racial caste and racial subordination. And so I think she was surprised that a colleague who has embraced the notion of a colorblind constitution would take this very much not colorblind way of understanding the first provision of the 14th Amendment.

21:43So she begins there, and then she makes the case through contemporaneous statements around the passage of the 14th Amendment that show that it wasn't understood to be simply about that. The nature of subordination, it wasn't sort of a, once we climb up the ladder, we're going to pull it up and no one can come behind us. Yeah, that kind of Swiss Family Robinson. Exactly. Smith-Manley Robinson theory of constitutional law. Yeah. And I mean, she does point to some of those contemporary statements about, you know, well, are we really going to allow what they referred to as gypsies? Are their children going to become citizens?

22:25And people said, yeah, yeah, of course they are. And Juan Kim Ark himself, obviously, is not black. He's of Asian descent. and so it was, I thought, a really interesting back and forth and her decision to call him out on this. Yeah, and one of her strongest points, too, was that there was a version of either the 1866 Act or of the 14th Amendment, I can't recall, that would have actually made clear that it was specifically about Friedman and that was not rejected in favor of this broader language, right? And so I think she has a really compelling response to Justice Thomas. All that said, you know, it seems like Justice Thomas may have persuaded Justice Gorsuch, right?

23:16So, I mean, Justice Gorsuch joins Justice Thomas's opinion, does not join Justice Alito's opinion. From oral argument, I think that after oral argument, it was predictable where Alito would land and where Thomas would land. I think it was less predictable that Gorsuch would land where he did. Oh, yeah. I mean, I had assumed in part because of his concern about the rights of Native Americans that he would not want to have an expansive view of the exceptions to birthright citizenship. You know, which of course raised this question of how do we explain, leaving aside the 1924 Act for a moment, how do we explain the birthright citizenship of kids born inside the United States state but not born in Indian territory who are tribal members?

24:06Are they citizens of the United States from birth because they're born in the United States and subject to the jurisdiction thereof? Or is it only statutory? I mean, you know, you kind of wonder whether if you if you really take the view that the dissenters are taking, could a later Congress just decide we're not going to allow kids who are tribal members to be U.S. citizens? yeah i wonder this too right i mean i think the answer is clear from the majority opinion but in terms of some of the dissenters i don't know exactly where they would land on that um which to your point is surprising because one of the most memorable questions from oral argument was justice gorthoch's um question to the solicitor general about whether or not native americans were uh natural born citizens within the meaning of the of the constitution and the manner in which the solicitor general fumbled through an answer.

25:00Yeah. So I was kind of surprised about that. I mean, if you're Justice Alito, one of the things I don't understand there is he talks about almost, you know, grandfathering in the people who've already been born in the United States, whose parents are not citizens, not legal permanent residents or the like, because they have a moral claim to citizenship. And that also struck me as kind of an odd, odd thing to say, that they would have a moral claim to citizenship, even though the Constitution doesn't give them that right at all. But a child born three days after the court's decision in his mind wouldn't have that.

25:45Yeah. You know, I'll say this. This is a slightly person, but it is my observation that Justice Alito, that he used to reason with more precision than I've seen in recent years. I would have said 10 years ago that he was the sharpest questioner, for example. He would ask the question that you had to work to get out of. Oh, yeah. No, I thought he he used to be an amazing questioner. And he's just gotten angrier and angrier and more and more sort of MAGA-ish. And that's what you kind of see, I think, in this opinion that he writes for himself. And, you know, it's I also sort of wonder if he didn't join the Justice Thomas opinion.

26:39He sort of kind of he has his own view in this in this case that he alone shares, it appears. Yeah. So so one question going forward that I have for you is it's now clear if you're born in the United States. And your parents are neither invaders nor diplomats, you are a citizen of the United States. So if you had a concern over birth tourism, and at least empirically, it's something less than, I think it's like three-tenths of 1 % of children born in the United States are born to people who are visitors to the United States. And I don't even know from that empirics how they're defining visitors.

27:25That is, it might be people who are here for a year as a student or the like, but it's a very small percentage of children are born to visitors. Could Congress, do you think, cause a statute that makes it a crime to come to the United States for the purpose of having a baby on U.S. soil? well so if so assume in this hypothetical that yeah it's that would it be some sort of form of fraud i mean that is to say i'm assuming that they had some sort of legal visa i guess one of the things you could do is you could simply deny the united states could deny visas to women who were pregnant. Sure. So if that happened, if the United States denied, why are we giving people ideas?

28:17Yeah, no, I mean, it just is, the idea that you can punish the child seems to me off limits. And it was quite distressing that the Supreme Court only thought five to four that it's off limits. The question whether the United States can use its immigration laws to prevent people from entering the country for the purpose of having children here. That seems to me to be a different question. And it's just the way in which the dissenters seemed to think that what you could do is punish a child because of the parents. I mean, this goes back a little bit to one of your other areas of real expertise, which is, you know, when you think about like dead people and the rights of the dead.

29:04That's part of this whole idea of the lineage stuff, right? And we don't allow bills of attainder. We don't allow corruption of the blood. And it seems almost like it would violate the prohibition on corruption of the blood to say that because your parents did something illegal, you can't be a citizen. Sure. I think that it would be certainly in grave tension with that tradition. And I think that is an important American tradition and that's a place where there's a break actually from the British common law tradition. There's much more skepticism of inheriting privileges such as nobility or inheriting disadvantages like via corruption of blood for felons and the like.

29:55But yeah, I mean, if there was a law that conditioned visas on not being pregnant and someone... Especially given how bad the court has been this term on, you know, on immigration stuff more generally. Sure, right. Yeah. I mean, I think they have wide latitude. Yeah. The government has wide latitude to say you can't come to the country because you're eight months pregnant. But it, yeah, it just kind of struck me as odd that you've got four justices who actually seem to think it's perfectly okay to punish a child because, and to deny the child some rights, even if the parents have not violated any law, because there are an awful lot of people in the country who are entitled to be here, who are not citizens and have children.

30:49While they're here. One thing that was sort of interesting about Alito's opinion that I still haven't fully wrapped my arms around is he says that the 14th Amendment does not require the country to be inhumane. And he uses that word. And I think what he means is that to the extent that there are gaps, that Congress can fix them. But the Constitution doesn't require an outcome that leaves people in the shadows, that Congress has a great degree of latitude here. That's my best understanding of what he meant, but it was an interesting line. Yeah, I mean, I saw that too, and I kind of wondered whether what he was saying was, look, if what you're worried about is that there would be some stateless children, Congress can fix that.