At Supreme Court, a once-fringe birthright citizenship theory takes the spotlight

Boston Globe

14-05-2025

For more than a century, most scholars and the courts have agreed that though the 14th Amendment was added to the Constitution after the Civil War, it was not, in fact, all about slavery. Instead, courts have held that the amendment extended citizenship not just to the children of former slaves but also to babies born within the borders of the United States.
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The notion that the amendment might not do so was once considered an unorthodox theory, promoted by an obscure California law professor named John Eastman and his colleagues at the Claremont Institute, a conservative think tank — the same professor who would later provide Trump with legal arguments he used to try to overturn the results of the 2020 presidential election.
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The story of how the theory moved from the far edges of academia to the Oval Office and, on Thursday, to the Supreme Court, offers insight into how Trump has popularized legal theories once considered unthinkable to justify his immigration policies.
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'They have been pushing it for decades,' said John Yoo, a law professor at the University of California Berkeley School of Law and a top lawyer in the George W. Bush administration. 'It was thought to be a wacky idea that only political philosophers would buy. They've finally got a president who agrees.'
The White House did not respond to requests for comment.
Trump promoted the theory during his first campaign but did not act on it until his second term. He signed an executive order on his first day to end birthright citizenship for the children of immigrants in the country illegally and some temporary foreign residents.
Legal challenges were swift and emphatic. Challengers pointed to the text of the 14th Amendment, which states, '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.'
Proponents of the policy have pointed to birthright citizenship as a cornerstone of what it means to be an American, part of the national ethos of the country as a place that is open to everyone, regardless of faith, color, or creed. Of the world's 20 most developed countries, only Canada and the United States grant automatic citizenship to children born within its borders.
In a brief to the Supreme Court, an immigrant advocacy group argued that 'birthright citizenship is at the core of our nation's foundational precept that all people born on our soil are created equal, regardless of their parentage.'
State attorneys general who are challenging the policy weighed in with a brief that argued that the Supreme Court had settled the question in the landmark 1898 case of United States v. Wong Kim Ark, when the court found that a man born in San Francisco to Chinese parents was a citizen.
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So far, courts have agreed. Judges in Washington state, Massachusetts, and Maryland quickly instituted nationwide pauses on Trump's policy.
In oral arguments this week, the justices will primarily consider whether federal judges have the power to order these temporary pauses, known as nationwide injunctions. But the question of birthright citizenship will form the backdrop.
In an interview, Eastman said he developed his views on birthright citizenship after the terrorist attacks on Sept. 11, 2001.
Back then, Eastman, who had clerked for Justice Clarence Thomas, was a law professor at Chapman University in Orange County, California, and director of the Center for Constitutional Jurisprudence at the Claremont Institute.
In late November 2001, a man named Yaser Esam Hamdi was taken into custody by US forces in Afghanistan and transferred to the military base and prison at Guantánamo Bay.
Officials learned Hamdi was a US citizen. His mother, a Saudi national, had given birth to him while the family was living in Baton Rouge, La., where Hamdi's father was working as a chemical engineer.
Because Hamdi was a citizen, authorities believed they could no longer hold him as an 'enemy combatant' in Guantánamo Bay, where he was considered beyond the reach of the full legal protections of federal courts. They transferred him to a naval brig in Norfolk, Va.
In a 2004 friend-of-the-court brief in the case, Eastman argued that the idea that citizenship was automatically conferred on all children born on American soil was a 'generally accepted though erroneous interpretation' of the 14th Amendment that was 'incorrect, as a matter of text, historical practice and political theory.'
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Although the idea that children born in the United States automatically become citizens has deep roots in the common law, it was not adopted in the text of the Constitution until 1868, as part of the 14th Amendment. It came in a sentence that overturned Dred Scott, the 1857 Supreme Court decision that affirmed slavery and helped prompt the Civil War.
Eastman claimed that nowhere during the debate over the 14th Amendment had lawmakers agreed to include temporary visitors.
The justices rejected this view, finding that the Constitution's due process protections applied to Hamdi.
Still, for years afterward, Eastman and Yoo publicly debated the issue, with Eastman arguing his theory that birthright citizenship was not in the Constitution and Yoo arguing that it was.
For much of that time, the debate felt abstract, Yoo said, of interest mostly to legal scholars.
'Never has an abstract idea had such enormous policy effects,' he said. 'It's like it almost just jumped from law review articles to the White House.'
That leap happened when Trump ran for president in 2015.
In an interview with Fox News personality Bill O'Reilly in August 2015, Trump outlined his plans to overhaul the immigration system. O'Reilly seemed skeptical at first, and then increasingly frustrated.
O'Reilly pointed to the 14th Amendment as an impediment to Trump's plan. But Trump responded, 'I think you're wrong about the 14th Amendment.'
'I can quote it — do you want me to quote you the amendment,' O'Reilly said, nearly shouting. 'If you're born here, you're an American — period! Period!'
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