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| Wong Kim Ark, from a 1904 US immigration document, via Wikimedia Commons. |
Revised and expanded from the post of January 26, with what I think is a somewhat new argument up in front, inspired immediately by an irritating Bluesky post.
Maybe the birthright citizenship order will ultimately be held unconstitutional, but I find it highly embarrassing for a judge to say something so unequivocally at a preliminary stage without the slightest acknowledgement that there is an entire literature that disagrees. 1/2 pic.twitter.com/2R4OE9lT8a
— Ilan Wurman (@ilan_wurman) January 23, 2025
The "entire literature" (which seems to consist of a single book by Peter Shuck and Rogers Smith, Citizenship without Consent: Illegal Aliens in the American Polity, Yale University Press, 1985, and its brief recap in the American Enterprise Institute's magazine National Affairs, summer 2018, presumably published in the hope of attracting attention from President Trump and his factotum Stephen Miller), is fatally flawed by its failure to recognize the significance of an obvious fact: there were no "illegal aliens" in the United States at the time the 14th Amendment passed Congress in 1866 and was ratified two years later, only millions of immigrants who might or might not choose to be naturalized (white immigrants, that is, under the terms of the Naturalization Acts of 1798 and 1802).
And when those immigrants had children, as they often did, no reason to question their citizenship or "naturalize" them; as affirmed in an 1844 New York state case, Lynch v. Clarke, in which a state judge held that a woman born in New York City, of alien parents temporarily sojourning there, was a U.S. citizen. They were "natural" already; for the children of immigrants, birthright citizenship was the universal norm (local governments could order the deportation of obnoxious individual immigrants, but there wasn't a national policy). Miller's scenario is completely irrelevant to the realities of the time when the 14th Amendment was written.
The hard cases before 1866-68 were not immigrants, but people whose parents were born within the borders of the US: citizens of the Indigenous nations, and the freed descendants of enslaved Africans.
