One of the Solicitor General's primary claims in the Trump v. Barbara oral argument was that the Trump Administration's position on birthright citizenship aligns with the consensus of commentators in the late 19th and early 20th centuries, the Supreme Court's decision in Wong Kim Ark notwithstanding. Setting aside whether post-ratification commentary is a reliable guide to the original public meaning of a constitutional provision--particularly where, as here, many opponents of the Fourteenth Amendment sought to narrow the scope of its guarantees--many scholars (and amicus briefs) contest the SG's claim.
One point of contention concerns the opinions of Richard W. Flournoy, Jr., an attorney in the State Department who wrote several articles related to citizenship, including "Dual Nationality and Election," 30 Yale Law Journal 545 (1921).
Although the government did not cite Flournoy's article in its opening brief, the SG did mention it at argument. In response to a question from Justice Kagan, the SG said:
