I write to add additional commentary to Oliver Niehaus’ column (“Case Against Birthright Citizenship is Stronger Than You Think,” The Oberlin Review, Feb. 14, 2025). I don’t doubt for a second that a Supreme Court will search for a way to find that the 14th Amendment does not confer citizenship rights on those born in this country. After all, this is a Court which has seen fit to essentially remove President Trump, and presumably all future presidents, from any obligation to the rule of law within “official acts” during their terms in office. Niehaus offers a number of plausible pathways for such a finding in his column. But it is important, if only for reasons of historical and documentary understanding, to address why birthright citizenship is not only deeply ingrained in the 14th Amendment, but has been understood in such a fashion for more than 150 years. I lean on the well-argued op-ed by Jamelle Bouie in The New York Times of Jan. 25 in what follows.

How could the 14th Amendment be said to apply to the broad field of undocumented immigrants when, at the time of its adoption, such a category didn’t exist? In fact, the legal equivalent of “undocumented immigrants” did exist at that time: Black people who had been illegally imported into the United States after the trans-Atlantic slave trade was finally outlawed in 1808. 

“Throughout the period leading up to the Civil War and the adoption of the [14th] Amendment,” Gabriel J. Chin and Paul Finkelman argued in the UC Davis Law Review in 2021, “the United States had both immigration laws and unauthorized migrants in the modern sense. First, the slave trade laws used immigration regulation techniques, including interdiction, detention, and deportation. Second, they were designed to exclude undesirable migrants and shape the nation’s population.” 

If Congress wanted to exclude these individuals from the 14th Amendment, it could have; but it didn’t.

It is also clear that the drafters of the 14th Amendment understood that birthright citizenship would naturalize children of all countries born in the U.S. even if, at that time — as well as now — they were seen as racial undesirables. When asked if the pertinent clause would, for example, naturalize “the children of Chinese and [Romani people] born in this country,” Senator Lyman Trumbull replied, “Undoubtedly.”  Trumbull helped draft the birthright citizenship language present in the Civil Rights Act of 1866 — which the 14th Amendment was intended to secure.

The conservative Court could also follow the Trump administration’s lead and declare that undocumented immigrants are “enemies within and during a hostile occupation” of the U.S., and therefore exempt from the plain language of the 14th Amendment. Certainly, the xenophobic Trump has insisted for years that immigrants who lack the proper documentation constitute an “invasion.” But, as Bouie points out, “Even the conservative Texas Public Policy Foundation, in a 2022 report on the meaning of ‘invasion’ in the Constitution, concluded that ‘the unlawful entry of people into the United States cannot be construed as an invasion. Nor, for the same reason, can the prospect of further illegal entry in the imminent future be so construed.’”

Finally, as the Supreme Court ruled in the landmark United States v. Wong Kim Ark case in 1898: “The foregoing considerations and authorities irresistibly lead us to these conclusions: The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.” A liberal ruling by a liberal court, perhaps? Not exactly. This was essentially the same court that had decided Plessy v. Ferguson — “separate but equal” — only two years earlier.

Again, I would not put it past this reactionary court, which treats stare decisis as nothing more than an inconvenient Latin phrase, to overturn birthright citizenship. But that doesn’t make the case against it historically or legally compelling.