From time to time, I hear an argument against birthright citizenship applying to the children of “unlawful immigrants,” and I decided to dig a little to see if its historical assumptions were right. My basic secondary research indicates those assumptions are wrong (TL;dr: California adopted state restrictions against Chinese immigrants in the 1850s-60s, and yet no one in Congress raised a question about birthright citizenship applying to anyone who had not followed those restriction or potential restrictions).

I’m paraphrasing their argument against birthright, not quoting:

In 1866-68, when the 14th Amendment was drafted and ratified, Congress had adopted no federal restrictions on immigration, so (the argument goes) Americans adopted birthright citizenship in a context without “unlawful immigrants,” and thus the ratification debates did not conceive of that status or resolve that issue. They only resolved birthright citizenship for “lawful” non-citizen immigrants and sojourners, etc. The argument assumes that Americans circa 1866 could not conceive of “unlawful immigrants” and how they would be covered by the text “subject to the jurisdiction.”

The next step in their ostensibly originalist argument is to emphasize the narrow exceptions to birthright citizenship that were accepted at that time, and to extrapolate from them (I’d say exaggerate from them, but I am trying to summarize their argument fairly).

First, I do not think this argument, even if it were historically correct, would be strong, because the birthright rule is so broad, and the exceptions are so narrow, and the exceptions elucidate a meaning of “jurisdiction” that would still apply generally to today’s “undocumented” or “unlawful” immigrant residents. But recently, far worse originalist arguments have somehow made it into major publications. This more plausible argument is at least based on a valid set of historical question.

The first step in a response is to note that there was no federal “U.S. citizenship” for anyone before the 14^th Amendment. Dred Scott ruled that U.S. citizenship followed state citizenship. Whether one agrees or disagrees with Chief Justice Taney’s proposition as an accurate historical description of early 19th century law, overturning that part of Dred Scott was a big reason for drafting the 14th Amendment, and that rule was the legal background.

So did states start restricting immigration? It turns out the answer is yes: California’s restrictions against Chinese immigrants.

You might be thinking, “Wasn’t the Chinese Exclusion Act passed in 1883?” Yes, but that was the federal culmination of state-wide efforts starting in the early 1850s. California passed a series of laws that restricted, regulated, or taxed Chinese immigrants, starting in 1852. Courts initially struck down a direct restriction as unconstitutional, but direct taxes and other regulations stayed in place. If a Chinese immigrant arrived and never paid the direct labor tax, it seems reasonable to suggest that they were in California “unlawfully,” just as a person who could be eligible to enter the country but never completed a visa or overstayed a visa might be considered “unlawful.” Even if one can quibble with whether “unlawful” would apply to the person’s status, the point is that this question was on the table, and the possibility of immigration bans was very much in the air in California, as the anti-Chinese political movement had won state-wide political power. See citations below.

Given these laws and the ongoing fight in California to restrict Chinese immigration, wouldn’t someone in Congress (or elsewhere in the historical record) have asked if there was an exception against birthright citizenship for Chinese immigrants whose legal status would be in doubt because of these actual and potential restrictions?

Instead, when the congressional debate raised the question of how broad birthright citizenship would apply to Chinese immigrants, no one is recorded questioning their legal status or raising this question. In fact, the California Senator who introduced this topic explicitly embraced the consensus position that birthright citizenship applied broadly to Chinese immigrants, with no indication that there would be exceptions.

Read this passage from Michael Ramsey’s excellent article “Originalism and Birthright Citizenship,” 109 Geo. L.J. at 447-48 (2020), which concludes that the 14th Amendment’s original public meaning was broad birthright citizenship with only traditional narrow exceptions. (I also note that Mike Ramsey and I independently and simultaneously came to the same conclusion that Randy Barnett and Ilan Wurman misinterpreted a sentence in Attorney General Bates’s 1862 opinion (their only American source, not even remotely related to the drafting of the 14th Amendment). You can read Mike Ramsey’s initial post here (it’s more concise than mine!), and he updated it to quote and agree with my analysis.

Sorry, back to Ramsey’s thorough article and the debate about Chinese immigrants:

The Munich Security Conference may as well have been held in the infamous Berlin suburb of Wannsee given the way that our sterling Vice President stepped into the shoes of Reinhardt Heydrich as he told the assembled European security officials that his boss Donald Trump had come up with a solution to what he might as well have called the Ukraine Question: sell 40 million people off to Trump's murderous pal, Vladimir Putin, let him order a great big Bucha and be done with them.

Reports from the conference said the attendees were in shock as Vance told them that they couldn't count on the United States to stand by its NATO treaty obligations in defense of its European allies. Vance might just as well have called out “so long Article 5” to his stunned audience on his way out the door.

It was left to the Security Conference Chairman, Christophe Heusgen, to try to make sense of what had just happened. Calling what he had heard from United States spokesmen a “European nightmare,” Heusgen lamented that “This conference started as a transatlantic conference, but after the speech by Vice President Vance on Friday, we must fear that our common value base is not so common anymore.” His voice breaking, the conference chairman could no longer continue. Beginning to cry, he walked away from the podium and embraced his wife in the front row of the audience. The conference attendees, who had begun applauding as Heugsen broke down in tears, fell silent.

Let me tell you why the tears of the Munich Security Conference Chairman did not shock me. It's because Europe is littered from North to South and East to West with the remnants and memories of the war that began 85 years ago and left not a town, not a street, not a building, not a human being untouched by the horrors wreaked upon a continent by one man with his insane prejudices and his army.

We all know of the American cemeteries filled with the white crosses and Stars of David that marked the graves of our fallen and the monuments that commemorate their valor. Our armies crossed an ocean to help conquer the Nazi hordes which sent millions to their deaths in concentration camps and killed millions more with bombs and rockets and artillery and machine guns and rifles. Millions of words have been written trying to make sense of what the Nazis did to the human beings and countries with whom they shared a continent and a history.

But the people who lived through that terrible time and suffered its bloody depredations -- the parents and grandparents of Christoph Heugsen and the other people who listened in abject horror to JD Vance and his threats and lies and the conference attendees themselves -- are all too aware of what happened to their relatives and their towns and their villages not so very long ago.

If you travel outside the typical tourist destinations like Paris and Amsterdam and Brussels and Rome, you will find more than the ruined castles and aqueducts and cathedrals of hundreds and even thousands of years ago. In the tiny village of St. Julien de Crempse in France's Dordogne region, you will find a monument with 45 names of men and boys who were massacred by Nazi soldiers in retaliation for an attack by the resistance on a supply train that was headed north to help reinforce Nazi defenders preparing for the invasion that would later occur at Normandy. A few miles to the north and west, in the town of Mussidan on one of its back streets near the railroad tracks and across from a small bar where men from the town drink beers and glasses of wine when they get off work, you will find another small monument to yet another massacre carried out by the Nazis in retaliation for yet another action by the resistance.

To the south and east of Bergerac, in a small village called Villefranche-du-Perigord, there is another monument commemorating yet another Nazi massacre, and in the nearby village of Mazeyrolles stands a small monument to those who were murdered by the Nazis at a time when drawing a breath as a French man or boy over the age of 10 was considered a crime by the Nazi occupiers.

One day in 1996 when we were driving down the road that ran alongside the Dordogne River on our way to lunch at a favorite restaurant in the next town, we were stopped by the outstretched white gloved hand of a uniformed Gendarme. As traffic piled up behind us, a bus pulled into view from the other direction and disgorged a band wearing French military uniforms. Carrying its instruments, the band marched into the field between the road and the river.

Shortly afterwards, two black Citroen cars pulled off the road across from us. Several Gendarmes wearing their distinctive caps and neatly pressed uniforms and white gloves helped three old men from the cars. They were wearing berets and black suit jackets with rows of medals adorning their chests. Walking with canes and moving very slowly, the old men made their way across the field and stood near the band. They were joined by several civilians wearing suits and ties, as a color guard marched onto the field and stood at attention next to them.

The color guard presented arms and dipped the French Tricolor as the band struck up “La Marseillaise.” One of the old men saluted. The others placed their hands over their hearts. When the band had finished playing the French National Anthem, the civilian officials handed each of the old men a bouquet of flowers which they ceremoniously placed on the ground against a small concrete obelisk. The French civilian officials shook hands with each of the old men, and they stood around talking for a moment, and then the Gendarmes escorted the old men back to the Citroen cars, and they drove away.

The color guard and the band marched back to the bus and put away their instruments and weapons and flags, and the bus pulled away. The civilian officials got into some other cars and they drove away. Only then did the Gendarme directing traffic allow us to proceed.

Driving back from lunch, we stopped along the roadside and walked into the field to have a look at the obelisk that had been the focus of the events we had witnessed earlier. I couldn't read the worn French inscription, so later that afternoon, I stopped at the Gendarme headquarters to ask them what the ceremony had been about. The desk sergeant went into the back and returned with one of the more senior officers who had been in attendance at the ceremony. He spoke a little English, and I spoke enough French to understand that the ceremony was to commemorate the landing by parachute of the first American OSS agent in that part of France. The old men had been members of the Maquis resistance, and one of them had been the escort who took the OSS man to a nearby farm where he had been hidden. He was there to train the resistance in methods of sabotage that would be used against the Nazi occupiers.

The same ceremony was held in the same field at the obelisk monument on the same day every year, and each time the old men from the resistance were honored for their service to France, and the role played by the Americans in helping to defeat the Nazis was remembered.

That is why the behavior and words of the American Vice President at the Munich Security Conference drew tears. Everyone at the Munich Security Conference knew that in walking away from NATO and taking the side of Russia against Ukraine, Donald Trump and JD Vance had dishonored the legacy and memory of those who had fought the Nazis and stood fast against the Soviet threat during the Cold War, and since then against the same totalitarianism represented by Vladimir Putin who is waging the first war of aggression on European soil since the terrible days of World War II.

Memory is not an academic exercise for our allies in Europe. It's an open wound that will never heal so long as Donald Trump is the President of the United States that is still remembered for having dropped an OSS agent into a field in Southern France to help the Maquis resistance defeat the Nazis.

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Paul Cottle is a professor of physics at Florida State University (who looks, swear to God, a lot like pulp hero Doc Savage). Cottle blogs at Bridge To Tomorrow where, in a recent post, he looks at how Florida has set some priorities that are bad news for education.

A conversation I had about a dozen years ago with a staff member at one of Tallahassee’s right-leaning think tanks provided a possible answer. I had asked for the meeting to discuss the ways that Florida might provide more of its high school students access to careers in engineering, science and health fields. I started the meeting by summarizing my concerns about what was happening in the state’s classrooms and suggesting some fixes. The staff member waved all of that off and responded with a question that I remember as, “How can we use this situation to strengthen the argument for school choice?” Prior to that meeting, I had adopted the point of view that school choice should primarily be a tool for providing high quality instruction to students who wouldn’t otherwise have access to it. That is, school choice was a means to the end of improving instruction. But the think tanker’s argument was something completely different: School choice WAS the end, not the means. Instructional quality was at best incidental to the whole effort.

Yes, you might be old enough to remember when the argument for choice was that it would improve education. Access to better school for students "trapped" in "failing" public schools. Competition would make everyone better. 

Then, as Cottle discovered, it turned out that all that mattered was choice; specifically, policy mechanisms for directing public money to private school operators.

Cottle also wants to point out another factor. Florida used to run a huge budget surplus, but now it's running a deficit. Cottle and others are trying to raise an alarm about math instruction and the need to improve math instruction, particularly by recruiting and retaining high quality teachers. But the "still-growing budget for school choice vouchers is surely competing for money with ideas for initiatives to improve student learning, and the voucher budget is winning."

A state that only has so much money to go around (or less) may have to decide between pumping up vouchers or trying to improve education, and in Florida, Cottle concludes, "Florida’s leaders have bet the entire education funding farm on school choice."

The "rescue" narrative was always a lie, proposing as it did that choice would "rescue" only a small number of students, leaving the rest to cool heels in their "failing" public school. Nor do the voucher schools do a better job of educating. Nor does competition raise all boats. 

Florida, always out ahead of the privatizing agenda for schools, has reached the point at which there's no longer any pretense that "choice" is about education and that, in fact, a better education for students in the state is part of the cost of school choice. As Cottle summarizes:

If a universal school choice voucher program somehow improves student learning in math and other subjects, well that is lovely. But at this point school choice is the primary goal, not improving student learning. So we should not be surprised if future Florida SAT and NAEP results continue to be disappointing.

One of the most transparent falsehoods of the choice movement has been the assumption that a state can run multiple school systems for the same money it spent on just one. And when money gets tight, states have to decide whether they want to focus on improving education for all students, or for financing their web of privatized education. It's not hard to predict which was Florida would go, but perhaps other states can be better.  

Here at the Institute, we love Dolly Parton's Imagination Library very much. It is one of the best, most effective philanthropic and educational programs in the country. And Governor Mike Braun of Indiana has decided the children of his state can just do without it.

This program started with the simplest idea in the world-- putting books in the homes of small children. It began, once again, in her home county, and her proposal was simple-- sign your newborn child up, and once a month from birth through Kindergarten, the child will receive a book. On the program's website, Parton writes

When I was growing up in the hills of East Tennessee, I knew my dreams would come true. I know there are children in your community with their own dreams. They dream of becoming a doctor or an inventor or a minister. Who knows, maybe there is a little girl whose dream is to be a writer and singer. The seeds of these dreams are often found in books and the seeds you help plant in your community can grow across the world.

The program launched in 1995 in Sevier County (Parton's home), and it grew quickly. By 2006, when the Washington Post wrote about it, the program had spread to 471 communities in 41 states. In 2011 it launched in Scotland, and it can now be found in the UK, Australia, and Canada. In February of 2018, the Imagination Library presented its 100 millionth book to the Library of Congress. There are currently more than 3.1 million children registered under the program, and the foundation has gifted over 270 million books.

The UK has recently introduced (via “guidance” rather than legislation) a permanent ban on naturalisation for people who arrive in the UK via “dangerous journeys”. The power used to block their applications is the Home Secretary’s discretion to refuse citizenship to someone of “bad character”. This new policy seemingly conflicts with the UK’s commitments under the Refugee Convention. I’ve a short piece on this at the London Review of Books blog.

This is my more concise letter to the NY Times editor, a short summary of Birthright Bates Backfire posts 1 & 2 (I can’t believe I had to repeat the first, but they don’t read) on Barnett and Wurman’s irresponsible and misleading (at best) misuse of Bates. It does not sound like they will publish it, so I’m posting it here:

February 17, 2025

In “Trump Might Have a Case on Birthright Citizenship.” (N.Y. Times, Feb. 15^th), Randy Barnett & Ilan Wurman offered only one American source for their argument, but when one looks up that source, it turns out that it doubly contradicts their argument. 

Barnett and Wurman suggest an “allegiance-for-protection theory” against birthright citizenship for “children born to parents in the country illegally or temporarily.” Their only American source for this theory is an ambiguous sentence from Lincoln’s Attorney General Edward Bates in 1862, even though Bates played no role in drafting the 14^th Amendment in 1866 (he had resigned in 1864), and even though Bates was unrepresentative of the drafters (he opposed immediate emancipation, even in 1865).

But most importantly, in four clear paragraphs soon after that single sentence, Bates decisively and unconditionally endorsed birthright citizenship as “universal principle, common to all nations and as old as political society,” and “a historical and political truth so old and so universally accepted that it is needless to prove it by authority.”

Whereas Barnett and Wurman claimed Bates’s sentence meant “allegiance” was a prerequisite for citizenship, the rest of Bates’s opinion shows they got it backward: Bates clearly was discussing the ways that citizenship creates both rights and duties of allegiance, in the same conventional and common-sense way citizenship creates a right and duty to vote or serve on a jury, a duty to register for the draft and a right to protest the draft. It was an error to cite this sentence in support of an esoteric rule that appeared nowhere in this document. 

Moreover, Bates also contradicted their interpretation of their only other source for the “allegiance” theory, William Blackstone. Bates cites Blackstone as support for broad birthright citizenship, and it matters more how Americans in the 1860s interpreted Blackstone than how a law professor might re-interpret him today. 

An “allegiance” rule for citizenship also would have created a hurdle for the primary purpose of the clause, clarifying the citizenship of former slaves, who had never been part of a “compact” of allegiance-for-protection, and some of whom had been smuggled in (thus, “in the country illegally,” through no fault of their own). And what about children born in Confederate states? It is implausible that no one would have asked these questions if some Americans assumed this “allegiance” theory.

Birthright citizenship had strong and clear support in the historical record of its drafting and ratification. This essay could not offer any evidence to the contrary, so I am left to conclude this essay backfired; the originalist case for birthright citizenship stands even stronger today.