At SCOTUSblog, Samarth Desai (Yale JD ’26): Birthright citizenship: Originalism 101. From the introduction:
These days, everyone wants to be an originalist. But in Trump v. Barbara, the birthright-citizenship case at the Supreme Court, not everyone is doing originalism well.
Alas, the Trump administration and its allies – including solicitor general D. John Sauer, law professor Kurt Lash, and law clerk Elias Neibart – are flunking Originalism 101: leaning on private letters, mangling old caselaw, turning a blind eye to mountains of contrary historical evidence, and distorting the 14th Amendment’s plain text (both what it says and doesn’t).
On the Trump administration brief:
Suppose a historian uncovered a private letter by James Madison contradicting what Madison said publicly in the Federalist Papers and in the Virginia ratification debates. Would we have to reopen settled constitutional questions? Overturn longstanding precedents? Disregard the Constitution’s plain text and history?
Of course not. A letter read only by Madison and his correspondent would have virtually zero legal significance to an originalist. As Justice Antonin Scalia always insisted, what matters is original public understanding, not “secret or technical meanings.”
Yet an unsigned, undated, private letter found in the Andrew Johnson papers is the cornerstone of Sauer’s brief on behalf of the Trump administration. Sauer clerked for Scalia but has evidently forgotten his boss’s most basic teachings.
Sauer attributes this unsigned letter to Senator Lyman Trumbull, the sponsor of the 14th Amendment’s precursor statute. (Professor Kurt Lash, citing AI handwriting analysis, concurs.) The letter interprets a draft version of the statute as granting citizenship to children “born of parents domiciled in the United States.” That language – especially the word “domiciled” – is convenient for Sauer, who claims that a child is a birthright citizenship only if at least one parent’s “domicile,” or legal home base, is in America.
But even if Trumbull did author this private letter, who cares? Neither the solicitor general nor Professor Lash has produced a shred of evidence that it publicly influenced the ratification of the 14th Amendment. How can a proper originalist credit a letter when we don’t know for sure (1) who wrote it, (2) exactly when and why it was written, (3) whether receipt was ever logged or acknowledged, (4) whether it was ever read, and (5) whether it was ever superseded by a later-sent letter?
Agreed as to the persuasiveness of a private letter — this is the literal version of the hypothetical secret founder’s letter Scalia imagined and rejected. (Plus, as the essay indicates, it’s not even a letter about the Fourteenth Amendment.) I would note that Professor Lash is careful not to attach too much importance to the letter, and it’s not central to his argument in his principal article.
As to Elias Neibart’s contribution, the essay continues:
So much for private letters. What about a trickle of post-ratification lower-court cases – some of which failed to even mention the 14th Amendment?
In a recent Harvard Journal of Law & Public Policy essay, law clerk Elias Neibart claims that “a handful of cases” “call into question” the long-dominant view that birthright citizenship is geographic, not genealogical – that constitutional birthright citizens are citizens because of where they are born, not to whom they are born. The cases, he says, “demonstrate” that “courts did not adopt a territory-centric view of citizenship” but rather “probed the legal status of the child’s parents.”
The problem? Of the five cases Neibart cites, only two were 14th Amendment cases – and both are perfectly consistent with the geographic view that all born (1) on American soil and (2) under the American flag are birthright citizens. The other three cases don’t even name the 14th Amendment – not once! – and are no guide to its meaning.
I thought Neibart’s essay (noted here) was interesting and added some evidence not (to my knowledge) previous discussed — but also I think the situation of the Native tribes was sufficiently unique that it is difficult to draw general principles from it.
UPDATE: Evan Bernick comments:
I think Professor Lash’s stance on the letter has evolved over time. A footnote (250) in his Notre Dame draft reads:
Although Trumbull’s letter to the President was not published at the time, it is nevertheless important evidence of the original understanding of the Fourteenth Amendment’s Citizenship Clause. It confirms that Fourteenth Amendment framer John Bingham’s parent-based view natural born citizenship was not idiosyncratic and was shared by key framers of both the Civil Rights Act and the Fourteenth Amendment. Also, although written in regard to the Civil Rights Act, we know that Trumbull and the other framers believed (and publicly declared) that the Fourteenth Amendment’s Citizenship Clause had the same “object” as the Civil Rights Act’s Citizenship Clause, and that both represented the proper understanding of antebellum law.
There’s a similar claim in the body (p. 146). And, Lash has been posting about the importance of the letter in response to the blog article. https://x.com/kurtlash1/status/2032454028953625018
ALSO RELATED: At SCOTUSblog, Akhil and Vikram Amar have a post responding to a different originalist claim: Birthright citizenship: a response to Pete Patterson.
Posted at 6:02 AM