In the case of Trump v. Barbara, the debate over birthright citizenship has brought attention to a significant aspect of constitutional interpretation: originalism. In this case, 33 of the 65 friend-of-the-court and party briefs on the merits have claimed an originalist standpoint, yet a detailed analysis exposes a disparity between the claim and the practice. This apparent adherence to originalism is investigated by Akhil and Vikram Amar, along with Amad Ross, revealing that many briefs fall short of what might be considered true originalism.
Originalism ideally encapsulates the text, history, and structure of the Constitution. The key clause in question is, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Some briefs fail to focus on this text’s primary subject: the individuals born within the U.S. Rather, they incorporate external factors like parental status, which are not present in the amendment’s language. This insufficiency underscores the difficulty of interpreting constitutional text without inserting contemporary assumptions.
Furthermore, the historical context of the 14th Amendment, including its roots in crucial Lincoln-era rulings, is frequently omitted. Despite President Lincoln’s administration setting forth the principle of birthright citizenship, only a handful of briefs adequately engage with these historical underpinnings. The contribution of significant documents, such as Lincoln’s Attorney General Edward Bates’s 1862 opinion, is largely overlooked despite its foundational role in setting the stage for the 14th Amendment.
Moreover, the originalism argument advanced by some briefs neglects the political and social dynamics surrounding the amendment’s passage. The closed-door Republican party caucus and the 1866 congressional debates were pivotal to the amendment’s creation. Yet, few briefs align their arguments with the perspectives espoused during these debates, notably the Republican emphasis that “subject to the jurisdiction” referred to anyone “under the flag.”
Importantly, the interplay between the 14th Amendment and the 13th and 15th Amendments, underscoring the rejection of hereditary privileges, is also inadequately reflected in the petitioner-side briefs. These briefs seek to narrow the concept of birthright citizenship, ironically sidestepping the very historical materials that seem most pertinent to understanding the original meaning they claim to champion.
The analysis by Amad Ross, detailed in the Brothers in Law series on SCOTUSblog by Akhil and Vikram Amar, offers an empirical insight into the inconsistent applications of originalism in the Barbara case. The findings suggest a disconnect between the purported originalist rhetoric and the substantive exploration of constitutional history, a gap that legal professionals and scholars should recognize and address as the discourse around birthright citizenship progresses. For ongoing analyses, readers are directed to further columns in the series.