Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices. Last month, the Department of Justice filed its brief with the Supreme Court in the high-stakes legal fight over birthright citizenship. According to the government, the justices should side with the Trump administration because the president’s executive order faithfully applies the intended meaning of the 14th Amendment’s citizenship clause, which states that all “persons born … in the United States, and subject to the jurisdiction thereof,” are U.S. citizens. Urging the justices to dive into the past, the Justice Department cites 19th-century books, letters, judicial opinions, and even a funeral speech in support of President Donald Trump’s attempt to narrow access to citizenship at birth. But in mining written texts from more than a century ago, the government’s brief plucks phrases that it favors while ignoring the political movement to dramatically expand citizenship in which the 14th Amendment was added to the Constitution. Courts and executive branch agencies have customarily interpreted the citizenship clause as granting U.S. citizenship at birth to everyone born in the United States except for children born to diplomats, Native Americans, and invading military forces. Indeed, other than these three narrow exceptions, courts and past presidential administrations since 1868, when the 14th Amendment was ratified, treated as irrelevant the citizenship or immigration status of a child’s parents. (In 1924, President Calvin Coolidge signed the Indian Citizenship Act, which gave U.S. citizenship to all Native Americans born in the United States.) Despite this, on the first day of his second term, Trump issued an executive order narrowly interpreting the citizenship clause. According to the executive order, children born in the United States should not be treated as U.S. citizens if they are born to a father who is neither a U.S. citizen nor lawful permanent resident and a mother who was living in the United States – at the time of the child’s birth – under a temporary visa or without the federal government’s permission. The case before the Supreme court, Trump v. Barbara, challenges the legality of Trump’s executive order. Last July, U.S. District Judge Joseph Laplante of New Hampshire found that the executive order likely violates the 14th Amendment and an immigration law enacted by Congress. Laplante consequently blocked the Trump administration from implementing the president’s order. Now before the Supreme Court, the Justice Department’s defense of the president’s order frames the legal fight in historical terms. Specifically, the government’s brief urges the court to “restore the original meaning of the Citizenship Clause.” To do that, the brief argues that the justices should allow executive branch agencies to implement Trump’s executive order because it articulates the citizenship clause’s meaning as it “was understood when it was ratified, not how it was misinterpreted in the 20th century.” By grounding its legal position in its understanding of that era, the government opens the door to competing assessments of the historical record. And a close analysis of the sources that the government references illustrate the difficulty it faces in its attempt to revise the prevailing view of the 14th amendment. In its attempt to identify how the citizenship clause was understood at the time it was added to the Constitution, the Justice Department references comments by six senators, five members of Congress, one state judge, one historian, a general, and an unnamed reporter. Although some of these individuals played an important role in crafting the 14th Amendment, it is not obvious why the Justice Department discusses others. Senator Lyman Trumbull was a political ally of President Abraham Lincoln and lead sponsor of the Civil Rights Act of 1866, a law that served as a model for the 14th Amendment. But Thomas Cooley – whom the government cites favorably – was serving as a justice on the Michigan Supreme Court when the 14th Amendment was proposed and then ratified. Meanwhile, the government references historian George Bancroft, but not for his 10-volume “History of the United States” nor for his two–volume “History of the Formation of the Federal Constitution,” which was published 14 years after the 14th Amendment was ratified. Instead, the government quotes the speech Bancroft gave at Lincoln’s 1865 funeral – three years before the 14th Amendment’s ratification. Likewise, the government relies on a scandal-ridden Union general, Stephen Hurlbut, and an article in The Chicago Republican, an obscure, short-lived newspaper. In a country that numbered approximately 39 million people in 1870, other statements by these 15 – all white men, except perhaps for the unnamed reporter – reveal a remarkably more complex understanding of citizenship than what the government’s brief suggests. For example, to support the executive order’s claim that children born to mothers who are living in the United States lawfully under a temporary visa – of which there are currently approximately 22 types – are not automatically entitled to U.S. citizenship, the brief recounts an exchange between Senators Benjamin Wade and William Fessenden during debates over the 14th Amendment. According to the brief, Fessenden objected to Wade’s initial proposal of a version of the citizenship clause that “would have granted citizenship to ‘persons born in the United States’” and, Fessenden said, would thus extend citizenship to children of parents who were only present in the country temporarily. But the actual historical record is more complicated. Fessenden did ask Wade to consider whether it might not be best to exclude from citizenship some people born in the United States. But Wade promptly rejected the suggestion. “The Senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside ‘near’ the United States, in the diplomatic language,” Wade responded. “[T]heir children would not be citizens, although born in Washington,” he added. Wade did not mention any other exceptions to the rule that birth in the United States results in citizenship. Indeed, that is consistent with Wade’s explanation, in the same Senate session, that he had “always believed that every person, of whatever race or color, who was born within the United States was a citizen of the United States.” Rather than the constrained version of birthright citizenship that Trump’s executive order promotes, Wade embraced a broadly inclusive version. The Justice Department’s claim that the 14th Amendment grants citizenship only to the children of people who owe “primary allegiance” to the United States likewise builds on decontextualized quotations. Of the three members of Congress and two senators that the government highlights, four – Senators Justin Morrill and Philemon Bliss as well as Representatives John Broomall and Martin Russell Thayer – describe allegiance as deriving directly from birth in the United States. Morrill, for example, said that “every man, by his birth, is entitled to citizenship, and that upon the general principle that he owes allegiance to the country of his birth, and that country owes him protection.” The government’s brief quotes a comment from Morrill about allegiance and protection, but by not presenting this statement the brief ignores Morrill’s broader position: a man is a citizen of the country in which he is born because he owes it allegiance and it owes him protection. Independently, Bliss, Broomall, and Thayer express similar views. At no point do any of them qualify citizenship like the Justice Department claims. Senator Garrett Davis also does not neatly support the government’s position. While the Justice Department correctly asserts that Davis defined a “foreigner” as someone “who owes allegiance to another Government,” he does not appear to view allegiance as relevant to birthright citizenship. To the contrary, Davis describes as “preposterous and absurd” the suggestion that anyone born in the United States could be treated as a foreigner. The remaining legislator, Representative John Bingham, would actually appear to endorse a narrower form of citizenship than Trump. As the Justice Department notes, Bingham stated that he would exclude from birthright citizenship children born to parents who owe “allegiance to any foreign sovereignty.” In the same speech Bingham leaves no doubt that he believes that citizenship should turn on the immigration or citizenship status of parents. But he goes further than Trump in suggesting that children born to citizens of any other country would be denied U.S. citizenship. “[E]very human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen,” he asserts. Because a person owes allegiance to their country of citizenship, anyone who is a citizen of another country owes allegiance “to any foreign sovereignty,” which, according to Bingham, would bar their children from obtaining U.S. citizenship at birth. Thomas Cooley – who, as noted, was a state judge in Michigan in 1880 – would likely have agreed. The Justice Department correctly explains that Cooley argued, in a book on constitutional law, that citizenship is unavailable to people who owe allegiance to another government. Cooley added, in the sentence that follows that line (which the government does not quote), that he would exclude from citizenship “aboriginal inhabitants” who “recognize the headship of their chiefs.” The dozen men whom the Justice Department cites to bolster its proposed understanding of the citizenship clause at the time that the 14th Amendment was ratified thus present complex views of citizenship that are sometimes at odds with one another. More importantly for the current legal fight over the future of birthright citizenship, they only partly align with Trump’s executive order; often, they contradict Trump’s position. Nothing less should be expected. In the late 19th century, when these men lived, citizenship was far from an esoteric idea. To people who had lived through the Civil War, citizenship was, instead, the stuff of political fights with flesh-and-blood consequences. That they would have strong, multifaceted views about citizenship that do not fit neatly onto our own debates more than 150 years later should not be surprising. The post In birthright citizenship fight, Justice Department selectively interprets the original meaning of the citizenship clause appeared first on SCOTUSblog.