In asking the Supreme Court to let him do away with birthright citizenship, President Trump has urged the justices to restore “the original meaning” of the 14th Amendment.
What the amendment meant when it was ratified in 1868, Mr. Trump’s lawyers said in a brief, was that “children of temporary visitors and illegal aliens are not U.S. citizens by birth.”
The court will hear arguments in the spring to decide whether that is right. There are many tools for assessing the original meaning of a constitutional provision, including the congressional and public debates that surrounded its adoption.
But one important tool has been overlooked in determining the meaning of this amendment: the actions that were taken — and not taken — to challenge the qualifications of members of Congress, who must be citizens, around the time the amendment was ratified.
A new study to be published next month in The Georgetown Law Journal Online fills that gap. It examined the backgrounds of the 584 members who served in Congress from 1865 to 1871 and found good reason to think that more than a dozen of them might not have been citizens under Mr. Trump’s interpretation of the 14th Amendment. But no one thought to file a challenge to their qualifications.
That is, said Amanda Frost, a law professor at the University of Virginia and an author of the study, the constitutional equivalent of the dog that did not bark, which provided a crucial clue in a Sherlock Holmes story.
The study raises new questions about Mr. Trump’s legal battle to narrow protections under the 14th Amendment’s citizenship clause, which says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
The Constitution requires members of the House of Representatives to have been citizens for at least seven years, and senators for at least nine. It adds that each House “shall be the judge” of its members’ qualifications.
“If there had been an original understanding that tracked the Trump administration’s executive order,” Professor Frost said, “at least some of these people would have been challenged.”
Hundreds of challenges to the qualifications of members of Congress have been filed over the years on all sorts of grounds, spiking in the years around the ratification of the 14th Amendment, a time of furious partisan division. Between just 1865 and 1871, the qualifications of 18 senators were contested. Yet there was but one challenge to a senator’s qualifications involving citizenship in those years.
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Several Democratic senators claimed in 1870 that their new colleague from Mississippi, Hiram Rhodes Revels, the first Black man to serve in Congress, had not been a citizen for the required nine years. They reasoned that the 14th Amendment had overturned Dred Scott, the 1857 Supreme Court decision that denied citizenship to the descendants of enslaved African Americans, just two years earlier and that therefore he would not be eligible for another seven.
That argument failed. No one thought to challenge any other members on the ground that they were born to parents who were not citizens and who had not, under the law in place at the time, filed a declaration of intent to be naturalized.
Immigrants were not eligible to be naturalized until three years after that declaration was filed and until five years after they arrived in the United States. The process was not perfectly analogous to lawful permanent residency, but it was not so very different, either.
Consider the case of Representative William Prosser, Republican of Tennessee, who served from 1869 to 1871. The study’s authors could find no record that Mr. Prosser’s parents, who were immigrants from Wales, had filed a declaration of intent to become citizens before his birth in 1834. His father did file such a declaration, but not until 1874, when he was 64.
The consensus on the 14th Amendment’s citizenship clause has long been that everyone born in the United States automatically becomes a citizen with exceptions for those not subject to its jurisdiction, like diplomats and enemy troops.
But on his first day in office at the start of his second term, Mr. Trump issued an executive order saying the original meaning of the citizenship clause required drawing a different line. On one side are the children of citizens and lawful permanent residents, who are entitled to automatic citizenship. On the other side are the children of people in the United States either unlawfully or temporarily, who are not.
The determination is to be made, the order said, as of “the time of said person’s birth.”
It is not enough for the parents to be legally present by, say, holding a student or tourist visa. It is of no moment that the they may eventually get a green card or become naturalized. They must have been citizens or lawful permanent residents on the day their child was born.
There is good reason to think that a substantial number of members of Congress around the time of the ratification of the 14th Amendment had not passed the analogous test under the law in place at the time, said Professor Frost, who conducted the new study with Emily Eason, a law student.
“If the executive order reflected the original public meaning, which is what the originalists say is relevant,” she said, “then somebody — a member of Congress, the opposing party, the losing candidate, a member of the public who had just listened to the ratification debates on the 14th Amendment, somebody — would have raised this.”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
The post A Conspicuous Gap May Undermine Trump’s Birthright Citizenship Plan appeared first on New York Times.
