As I write, Solicitor General has just concluded his arguments in Trump v. Barbara, the birthright citizenship case. I will avoid making any firm predictions until the case is concluded, but things do not look good for the government here.
In the meantime, I wanted to flag a question Justice Gorsuch asked. He flagged Justice John Marshall Harlan's lecture notes on Wong Kim Ark. I didn't realize that the ACLU had cited the article on Harlan's lectures that I co-authored with Brian Frye and Michael Michael McCloskey in 2013. Here is the excerpt from the brief:
Indeed, the Wong Kim Ark dissenters recognized that the majority had rejected any domicile requirement under the Clause. 169 U.S. at 705-06 (Fuller, C.J., dissenting). Chief Justice Fuller noted that under the Court's ruling, "the children of foreigners, happening to be born to them while passing through the country," are natural-born citizens. Id. at 715 (emphasis added). Justice Harlan, who joined the dissent, put the point more concretely in a subsequent lecture:
Suppose an English father and mother went down to Hot Springs to get rid of the gout, or rheumatism, and while he is there, there is a child born. Now, he goes back to England. Is that child a citizen of the United States, born to the jurisdiction thereof, by the mere accident of his birth?
Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98, Lecture 27 (May 7, 1898), in 81 Geo. Wash. L. Rev. Arguendo 12, 344 (Brian L. Frye et al., eds., 2013) (footnote omitted). Justice Harlan thought the answer should be no, but he recognized that the majority disagreed, explaining: "I was one of the minority, and of course I was wrong." Id.
