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The Legal Academy's Leading Originalists Remain Breathtakingly Full of Shit
Last month, the Supreme Court agreed to hear oral argument in Trump v. Barbara, a case that challenges the constitutionality of President Donald Trump’s executive order purporting to redefine birthright citizenship. The Court will hear oral argument in the case on April 1, and will in all likelihood issue its opinion before the justices adjourn for the summer.
The Fourteenth Amendment, which Congress adopted in the years following the Civil War, extended citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Yet Trump declared last January that going forward, persons born in the United States would not be citizens unless at least one parent is a citizen or a lawful permanent resident. If the Court allows the executive order to take effect, it would deny citizenship to hundreds of thousands of newborn babies every year, and recreate an antebellum caste system in which social disadvantage is passed down by law from parent to child.
So far, every federal court to assess the order’s legality has recognized it as flagrantly unconstitutional. A federal district court in Maryland, for instance, concluded that the order “flouts the plain language” of the Fourteenth Amendment and “runs counter to our nation’s 250-year history of citizenship by birth.” A federal district court in New Hampshire found that the order “contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it.” A federal district court in Washington called the Trump administration’s view of the Fourteenth Amendment “untenable,” and criticized the government for rehashing “losing arguments from over a century ago.”
The judiciary’s agreement reflects an enduring scholarly consensus about what Congress meant in the Citizenship Clause, and how courts have interpreted its text ever since. Evan Bernick, a law professor who coauthored the 2024 book The Original Meaning of the Fourteenth Amendment, warned last year that Trump’s order is “so transparently lawless” that even analyzing its constitutionality may “risk conveying the impression of a serious legal debate.” In case there was any doubt, he said, “there is none.”
Nevertheless, several Trump allies recently filed amicus briefs in Trump v. Barbara arguing that the order actually restores the original understanding of the Fourteenth Amendment. Former Attorney General Edwin Meese III, for example, characterizes over 150 years of settled constitutional understanding as “longstanding and mistaken assumptions.” The conservative law professor Ilan Wurman contends that the historical rule of birthright citizenship “almost certainly excluded the children born to unlawfully present aliens,” and is “at best unsettled” with respect to the children of “temporary visitors.”
The Fourteenth Amendment, which Congress adopted in the years following the Civil War, extended citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Yet Trump declared last January that going forward, persons born in the United States would not be citizens unless at least one parent is a citizen or a lawful permanent resident. If the Court allows the executive order to take effect, it would deny citizenship to hundreds of thousands of newborn babies every year, and recreate an antebellum caste system in which social disadvantage is passed down by law from parent to child.
So far, every federal court to assess the order’s legality has recognized it as flagrantly unconstitutional. A federal district court in Maryland, for instance, concluded that the order “flouts the plain language” of the Fourteenth Amendment and “runs counter to our nation’s 250-year history of citizenship by birth.” A federal district court in New Hampshire found that the order “contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it.” A federal district court in Washington called the Trump administration’s view of the Fourteenth Amendment “untenable,” and criticized the government for rehashing “losing arguments from over a century ago.”
The judiciary’s agreement reflects an enduring scholarly consensus about what Congress meant in the Citizenship Clause, and how courts have interpreted its text ever since. Evan Bernick, a law professor who coauthored the 2024 book The Original Meaning of the Fourteenth Amendment, warned last year that Trump’s order is “so transparently lawless” that even analyzing its constitutionality may “risk conveying the impression of a serious legal debate.” In case there was any doubt, he said, “there is none.”
Nevertheless, several Trump allies recently filed amicus briefs in Trump v. Barbara arguing that the order actually restores the original understanding of the Fourteenth Amendment. Former Attorney General Edwin Meese III, for example, characterizes over 150 years of settled constitutional understanding as “longstanding and mistaken assumptions.” The conservative law professor Ilan Wurman contends that the historical rule of birthright citizenship “almost certainly excluded the children born to unlawfully present aliens,” and is “at best unsettled” with respect to the children of “temporary visitors.”
https://ballsandstrikes.org/scotus/birthright-citizenship-case-supreme-court-amicus-briefs-originalists/