The Liberal Scholars Who Influenced Trump’s Attack on Birthright Citizenship

As constitutional turns of phrase go, the part of the Fourteenth Amendment that guarantees birthright citizenship seems more straightforward than most: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The legal scholar Akhil Reed Amar has called the Citizenship Clause “one of the richest single sentences in the entire Constitution.” For once, the expert consensus matches the layman’s reading: if you’re born in the United States, you’re a citizen.

In January, however, President Trump issued an executive order decreeing that birthright citizenship would be restricted to the children of citizens and permanent residents. The order, which was quickly paused by multiple legal challenges, relies on a fringe interpretation of the Fourteenth Amendment that immigration restrictionists and white nationalists have been pushing for decades. They insist that the Citizenship Clause’s clarity can be unravelled simply by tugging on its most mundane phrase: “subject to the jurisdiction thereof.”

Over time, these five words have assumed a “Da Vinci Code”-esque significance among anti-immigration activists and a tiny coterie of legal scholars, who believe that the amendment’s authors never intended to grant automatic citizenship to children of undocumented or temporary immigrants. The phrase is “pregnant with meaning,” Kris Kobach, the attorney general of Kansas and an influential proponent of state-level immigration restrictions, said. It provides the rationale for Trump’s executive order and is regularly wielded by immigration hard-liners like Stephen Miller. Oddly, though, this argument has its origins in an esoteric work of political theory published forty years ago by two liberal Yale professors who favored more immigration, not less.

When “Citizenship Without Consent,” by Peter H. Schuck and Rogers M. Smith, came out, in 1985, it was panned by academic reviewers and sold poorly. Yet its thesis has been weaponized by “hundreds of law review articles, opeds, white nationalist listservs, congressional hearings, and bills,” according to an analysis co-authored by Gabriel Chin, an immigration-law professor at the University of California, Davis.

Both Schuck and Smith have been retired for years; Schuck declined to be interviewed, citing health issues. Their book, Smith told me, “was and remains a painful aspect of my professional life.” Now, its long, strange afterlife has extended all the way to the Supreme Court. After Trump’s executive order was blocked by several federal judges, the Administration asked the Justices to consider the constitutionality of birthright citizenship; the Court is now deciding whether to hear the case during the current term. “We are the starting point,” Smith said ruefully. “It’s not a distinction that I am particularly proud to have.”

At a Yale-faculty seminar on immigration held in the early eighties, Smith, an up-and-coming political scientist, and Schuck, an authority on administrative law, realized they had something in common. Both suspected that the Fourteenth Amendment contained an uncomfortable ambiguity, one that could upend the conventional understanding of American citizenship. They decided to collaborate on a book.

“Citizenship Without Consent” argues that the United States has never resolved the tension between two philosophies of citizenship. In the authors’ framework, birthright citizenship was inherited from the “ascriptive” model of English common law, in which a person became a subject of the king at birth. America’s founders, they suggested, envisioned a “consensual” model, which empowers both the individual and the state to shape the terms of their political community. Schuck and Smith believed the champions of the Fourteenth Amendment meant to clarify the meaning of citizenship.

The amendment was debated in the Senate in 1866, as the Reconstruction Congress attempted to suture the nation together after the Civil War and secure rights for freed slaves. At that time, discussion of the Citizenship Clause mostly focussed on the question of Native Americans on tribal lands within U.S. territory. The words “subject to the jurisdiction thereof,” Lyman Trumbull, a senator from Illinois, explained, prevented members of those tribes from receiving birthright citizenship, since they were beyond the nation’s “complete jurisdiction.” (Two other groups were similarly excluded: children born to foreign diplomats and those born to a hostile occupying force.)

To Schuck and Smith, that conclusion was revelatory. The phrase “subject to the jurisdiction” must mean more than the mere accident of birth. It seemed to denote a mutual compact—people whose sole allegiance was to the U.S., and who were intentionally accepted by the government. Given that the phenomenon of illegal immigration didn’t exist when the Fourteenth Amendment was drafted, they reasoned, the clause simply didn’t apply to children born on U.S. soil whose parents had come here “without consent.” Nor did the prevailing Supreme Court precedent, U.S. v. Wong Kim Ark (1898), seem to address them, since it concerned a man whose parents were legal immigrants. Schuck and Smith concluded that Congress could limit future birthright citizenship to the offspring of citizens and permanent residents—a notion that “has to our knowledge never been seriously considered.” Smith told me he didn’t believe Congress should do this, only that it could. “We thought it was provocative,” he said.

Various academic peers deemed their novel reading “seriously flawed,” “simply puzzling,” and “morally incoherent.” “People were shocked,” recalled the Harvard immigration scholar Gerald Neuman. “The settled understanding had been settled for so long.” Undocumented immigrants, critics pointed out in a flurry of law-review essays, were obviously bound by the U.S. legal system. Trumbull had been speaking of Native Americans on the frontier or on reservations that largely operated as quasi-foreign states under treaties with Washington. Like foreign diplomats and their families, they couldn’t be sued or prosecuted in federal court. (Native Americans wouldn’t be granted citizenship until 1924.)

Some of the book’s arguments, Neuman said, “are just made in ignorance of history.” Immigration was not entirely unregulated, he pointed out, before the Fourteenth Amendment was written. States barred the entry of “paupers” and the “infirm”; Southern legislatures prohibited the entry of free Black people. In 18src3, Congress made it a federal offense to bring any “people of color” into the country, to prevent an influx of free Black immigrants fleeing the Haitian revolution.

The amendment’s opponents were also acutely aware that it would extend citizenship to the children of immigrants they did not want to let in. Edgar Cowan, a Republican senator from Pennsylvania, warned of an invasion of “gypsies” who “pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him, but, on the other hand, have no homes, pretend to own no land, live nowhere, settle as trespassers wherever they go.” He also feared “a flood of immigration of the Mongol race,” demanding, “Is the child of the Chinese immigrant in California a citizen?” Although Chinese immigrants were then barred from naturalizing, the response from the California senator John Conness, another Republican, was unequivocal: U.S.-born children “of all parentage whatever” would be citizens. With these possibilities in plain view, the amendment was ratified in 1868.

Above all, legal experts concluded, Schuck and Smith had misconstrued the Fourteenth Amendment’s purpose. The Constitution barely mentioned citizenship, in part because disagreements over slavery made it impossible to agree on a definition. In the Dred Scott case, of 1857, the Supreme Court supplied one, ruling that no person of African descent, free or enslaved, could be an American citizen. The Fourteenth Amendment’s authors sought to establish an expansive, titanium-clad definition of citizenship that couldn’t be dismantled by the courts, Congress, or the President. In a blistering review of “Citizenship Without Consent” titled “Back to Dred Scott?” Neuman concluded that Schuck and Smith had, at best, “identified a strategy by which a court, determined to deny citizenship to American-born children of undocumented aliens, could justify such a holding.”

But the book did find one admirer: John Tanton, a small-town ophthalmologist who became the architect of the modern anti-immigration movement. In 1979, Tanton founded the Federation for American Immigration Reform (FAIR), to lobby for major legislative change. By the mid-eighties, having made little headway, he decided to focus on creating an intellectual infrastructure for his vision, which he described, privately, as the preservation of America’s “European-American majority.”

Tanton was an autodidact and an irrepressible writer of memorandums; his personal library contained several thousand books. In short order, he founded, or helped create, a think tank, the Center for Immigration Studies; a litigation arm, the Immigration Reform Law Institute; and a journal, The Social Contract, which published an eclectic mix of articles by immigration restrictionists and white nationalists, and reprinted material from mainstream academics and journalists, to gain influence by engaging with the broader debate. “Citizenship Without Consent” was excerpted in the journal a decade after the book’s publication, with an approving introduction from The Social Contract’s editor, Wayne Lutton, who had come to the job after a stint with the white-supremacist Council of Conservative Citizens.

In FAIR’s early days, Tanton had considered targeting birthright citizenship, but he abandoned the idea because any reform was universally assumed to require a constitutional amendment. After he discovered “Citizenship Without Consent,” that changed. In 1995, Tanton submitted a funding proposal to Cordelia Scaife, one of FAIR’s major benefactors. One line item was titled Anchor Babies—a term he had to explain, since it hadn’t yet entered the vernacular. Although children of “illegal alien mothers” were presumed to have American citizenship automatically, Tanton wrote, he had come across a book by two Yale professors proposing “a simple legislative solution.” “This is another good example of how a book can lead to social change,” he observed. He requested fifteen thousand dollars to “have the professors draft the necessary legislation, get it introduced, and supported.”

Schuck and Smith never collaborated with Tanton, and Smith said he was never asked to contribute to any legislation. That year, though, House Republicans introduced two bills limiting birthright citizenship to the children of citizens and permanent residents, with one author, Brian Bilbray, of California, prominently citing Schuck and Smith. Bilbray, who went on to become a lobbyist for FAIR, told me that although his Republican colleagues “didn’t want to touch [the bill] with a ten-foot pole,” he figured he’d “put it out there, have somebody sue against it, and then have the Supremes take a look.”

In December, 1995, the judiciary subcommittee on immigration convened a hearing. Both Schuck and Neuman testified against the proposed legislation. Neuman noted that the settled interpretation of the Fourteenth Amendment had been questioned “solely because of a contrary thesis argued in a book published in 1985 by two professors at Yale University.” He observed, “It is one thing for academics to propose a speculative new theory and submit it to professional refutation, but quite another thing to experiment with the rights of U.S. citizen children. Schuck explained that he stood by his legal analysis but believed changing the law “would not be a prudent expenditure of congressional energy.”

The bills went nowhere. But from then on, conservative representatives periodically introduced similar measures. “Many of them did it in nativist or racial terms that both of us found appalling,” Smith said.

After 9/11, John Eastman, a scholar at the conservative Claremont Institute and a former clerk for Justice Clarence Thomas, found a speedier way to get the Supreme Court involved. In 2srcsrc4, he co-authored a brief in Hamdi v. Rumsfeld, the case of an American-born fighter in Afghanistan who was held as an enemy combatant by the U.S. military. Eastman argued that Yaser Hamdi should not receive the protections of citizenship because his Saudi Arabian parents had been in the U.S. on temporary visas. Not even Thomas, his former boss, took the bait. But Eastman, along with his fellow Claremont scholars Edward Erler and Michael Anton, kept pressing the issue, with Eastman and Anton eventually advocating that birthright citizenship could be eliminated via executive order. They failed to convince most conservative legal scholars, including John Yoo, the former Bush Administration lawyer known for his capacious view of executive power. The notion that the Citizenship Clause’s accepted meaning could be vaporized by invoking the words “subject to the jurisdiction thereof” was, Yoo said, “like that movie ‘National Treasure’ or whatever, where Nicolas Cage is running around finding ancient American documents.”

Others tried from the bottom up. In 2src11, FAIR’s legal arm, the Immigration Reform Law Institute, proposed an interstate compact in which signatories would issue a different birth certificate to the babies of undocumented or temporary immigrants. The institute’s then counsel, Kris Kobach, joined a coalition of state lawmakers to promote the compact, which was introduced in several states and passed in none. Then came Trump’s election in 2src16. After winning no victories in nearly two decades of creative maneuvering, the opponents of birthright citizenship were catapulted into positions of power and influence.

Midway through Trump’s first term, Kobach briefed the President on the alternative reading of the Citizenship Clause in a dining room just off the Oval Office. Kobach told me he had likely first encountered the theory at Yale, where he studied immigration law with Peter Schuck. His history lesson at the White House may have resulted in the most erudite tweet the President has ever composed. “So-called Birthright Citizenship,” Trump wrote in October, 2src18, “will be ended one way or the other. It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof.’ Many legal scholars agree. . . . .”

Trump would not introduce his long-promised executive order until his second term, but when he did, on his first day back in the White House, John Eastman was so elated that he told a reporter he’d been tempted to pour Gatorade over his head. (By that point, Eastman had gained wider notoriety as a lawyer who had advised Trump on efforts to contest the results of the 2src2src election.) Since then, five federal courts have ruled against the executive order, which even some immigration restrictionists consider to be a stretch. Mark Krikorian, the executive director of the Center for Immigration Studies, described it as a “let’s see if this flies” maneuver. A change so seismic, he argued, should come from Congress. “If I were on the Supreme Court, that would probably be my decision,” he said. Still, from his perspective the executive order was politically useful. The Administration had made birthright citizenship seem less “automatic, like the weather,” as he put it. Perhaps, he mused, it would one day be a bargaining chip in a major immigration reform.

The last time the Supreme Court weighed the question of birthright citizenship was a hundred and twenty-seven years ago, and that case was also engineered by a small group of ideologues in government hoping for a rewrite of the Fourteenth Amendment. In 1882, fourteen years after the amendment’s ratification, Congress passed the first Chinese Exclusion Act, which barred Chinese workers from coming to the U.S. for ten years. But, to the chagrin of nativists, children born to Chinese parents who were already in the country could still obtain citizenship. Justice Department lawyers started hunting for a case that could overturn that right. In 1895, an American-born man named Wong Kim Ark was denied entry to the U.S. after returning from a trip abroad. When he sued, the D.O.J. had its test case. Solicitor General Conrad Holmes told the Supreme Court that, since Wong’s parents were Chinese citizens, Wong was the “subject of a foreign power” and therefore ineligible for U.S. citizenship. (Holmes, a former Confederate officer, also questioned the validity of the Fourteenth Amendment itself, complaining that Southern states had been forced to ratify it.)

This gambit could not have backfired more definitively. In 1898, at the height of anti-Chinese bigotry, the Supreme Court delivered an unambiguous 6–2 ruling that went well beyond the particulars of Wong’s case. Justice Horace Gray wrote for the majority, “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” That interpretation has stood ever since, making birthright citizenship one of the most durable concepts in America’s unpredictable political life.

Rogers Smith, though, remains unconvinced. In 2src18, he and Schuck wrote an article in National Affairs defending their theory, albeit with a rather significant caveat: since opponents had repeatedly failed to change the law, Smith argued, Congress effectively had endorsed birthright citizenship. He told me that it had taken him years to revisit the subject. “I thought I’d done something that had bad political consequences,” he said. His next major work, “Civic Ideals,” was a meticulous accounting of how white supremacy has shaped American identity and institutions. It was a finalist for the 1998 Pulitzer Prize for history, but never achieved the same reach as “Citizenship Without Consent,” which now stands as a kind of cautionary tale of a thought experiment run amok. “When we wrote the book, we thought that it was such a novel argument that people would disregard it,” Smith said. They never imagined that being taken seriously would be the bigger problem. ♦