Over at The Dispatch, I have a new piece on the originalist case for birthright citizenship. President Donald Trump's executive order attempting to strip natural-born citizenship status from children born of undocumented aliens and temporary aliens is facing an uphill climb before the Supreme Court on April 1. The uncertainly about its fate is not whether the Court will strike down the executive order as unlawful but how many votes the White House might get from the justices. Will the loss be unanimous, or merely overwhelming? We'll know this summer.
Meanwhile, some scholars and activists have emerged to lend support to the administration's efforts. A small handful of scholars (including Trump favorite, John Eastman, and my own dissertation advisor, Rogers Smith) had developed a revisionist case on the history and constitutional theory of birthright citizenship many years ago. Since the executive order was issued, a small band of new advocates have joined that revisionist camp in defense of the administration's actions.
Because someone is wrong on the internet, I have been drawn back into debates that once occupied me in seminars in graduate school. The revisionist case is still wrong, and the conventional wisdom is still right. If one wants to defend the Trump executive order, one would be best served by arguing that the original meaning of the Fourteenth Amendment is not dispositive.
