The Nonsense Case Against Birthright Citizenship
Meet the conservative legal minds telling the Supreme Court to side with Trump.
Pema Levy and Isabela Dias
On February 15, 2025, two law professors dropped a legal bombshell. Just three weeks before, President Donald Trump had signed an executive order attempting to unilaterally deny birthright citizenship to the children of visa holders and undocumented immigrants despite the Constitution’s clear mandate that virtually everyone born on US soil is an American citizen. In quick succession, four federal district court judges blocked the order, with one deeming it “blatantly unconstitutional.” Into this righteous consensus rode Ilan Wurman, a law professor at the University of Minnesota, arguing in the pages of the New York Times that, actually, Trump might have a point.
Legal scholars and historians reacted with horror, not because the article, co-written with Randy Barnett of the Georgetown University Law Center, had uncovered some secret truth that would crack the traditional view of universal birthright citizenship, but because their argument against this cornerstone of American democracy was deceptive. Critics decried Wurman and Barnett’s case as “wrong and dangerous,” pointing to their misreading of historical sources and reliance on evidence that contradicts their thesis. One constitutional law professor went so far as to call their op-ed “hackery by amateur historians who misstate the legal history and twist their own argument.” He and others warned that the article’s revisionist arguments and prominent platform risked leading the public to falsely believe that there was a serious debate at play.
Despite its glaring flaws, the Times opinion piece was the opening round in what would be a year-long campaign to upend conventional wisdom, muddy the truth, and ultimately help the Trump administration’s radical anti-immigrant agenda across the finish line at the Supreme Court. On Wednesday, when the justices hear oral arguments over the president’s effort to rewrite the Constitution and limit birthright citizenship in Trump v. Barbara, the position advanced by Wurman and a handful of controversial legal scholars will get its day in court.
Trump’s policy would plunge the country into an “unclear, contingent, and chaotic experiment in exclusion.”
It’s no exaggeration to say that American society is on the line. Before the Civil War, enslaved people represented a permanent underclass. The Supreme Court’s 1857 Dred Scott decision, which had relegated free Black people to inferior status by ruling they couldn’t be citizens, meant that the rights of more than four million Black people were at the mercy of the political branches. After the war, the Radical Republicans attempted to eradicate that race-based caste system. By engraving birthright citizenship into the Constitution, they proclaimed that never again would politicians be able to strip an unpopular group of citizenship and declare it beneath everyone else.
If Trump prevails, the United States will revert back to a tiered society where some newborns enjoy the full benefits and protections of citizenship, while others, lacking them, are denied necessities like food assistance, health care, security from detention and deportation, or even education. As the civil rights groups challenging the executive order charged in a brief in the case, Trump’s policy would plunge the country into an “unclear, contingent, and chaotic experiment in exclusion from our national community.”
There is a mountain of evidence supporting the long-held and widely accepted interpretation of the 14th Amendment’s guarantee of citizenship by birth. This broad understanding is shared by nearly every historian and legal authority on the subject, on both sides of the political aisle. The few who have established the camp to narrow birthright citizenship make for a revealing band of misfits.
Among the legal minds who submitted friend of the court briefs supporting Trump’s executive order are Wurman, an ambitious young Trumpian law professor; Richard Epstein, a prolific libertarian torts expert who distinguished himself with woefully inaccurate predictions about Covid-19; and John Eastman, who has long argued for restricting birthright citizenship but earned national notoriety as the legal architect of Trump’s failed 2020 insurrection. Together, they have put forward both novel and recycled already-rejected arguments that are not only morally reprehensible but historically implausible.
Few lines in the Constitution are as plain as the first sentence of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Known as the Citizenship Clause, it establishes citizenship for anyone born in the United States, except for the children of invading soldiers and diplomats. Americans also recognized an exception for Indian tribes, acknowledging their unique sovereign status. The project of the Trump administration and its allies was to find a way to pry open that closed set of exceptions.
In their Times op-ed, Wurman and Barnett set out to prove that the words “subject to the jurisdiction” mean more than they appear to. The agreed-upon reading is simply a child who at birth is bound by the laws of the United States, which explains why the babies of ambassadors, invaders, and tribes, who are exempt from some US law, were exceptions. But Wurman and Barnett argued the phrase actually implies an allegiance to the government on the part of the parents in exchange for protection. Citizenship at birth, they said, cannot extend to the children of immigrants who entered the country without permission and, therefore, didn’t join the mutual compact. (They don’t address the question of children born to people here temporarily.)
To back up their claims, Wurman and Barnett presented as key evidence a line in an 1862 opinion by Edward Bates, Abraham Lincoln’s attorney general, in which he defined a citizen as one bound to the country “by the reciprocal obligation of allegiance on the one side and protection on the other.” Likewise, they argue, the 14th Amendment’s guarantee of citizenship is predicated on an exchange of allegiance for protection.
Embarrassingly, however, multiple scholars promptly pointed out that Bates’ full opinion actually offers an unequivocal endorsement of citizenship as created by the “accident of birth” in the United States. Boston University law professor Jed Shugerman noted that Bates had cited the same English common law sources as Wurman and Barnett to argue the opposite point, a sign that the amendment’s framers recognized a historical rule of birthright citizenship. Wurman went on to publish a 135-page paper in support of the allegiance-for-protection theory in which he moves other historical artifacts to the fore and Bates’ opinion conveniently plays a smaller role.
After a few weeks of withering criticism of the Times op-ed, Barnett mostly withdrew from the birthright citizenship debate. In an email to Mother Jones, he said that, following the “vetting” work from both sides of the issue, he was now “more confident than I was when Ilan Wurman and I offered our tentative thoughts in an op-ed, that the executive orders are consistent with the original meaning of the Citizenship Clause.”
Most originalists, including prominent conservatives, disagree with Wurman.
In this legal arena, Wurman stands out as the loudest and most prominent academic to defend Trump’s position, pushing the cause in testimony before Congress and on his podcast. He has described his recent interest in the subject as the result of an alignment of stars, a convergence of his previous work on the 14th Amendment, his “somewhat different political predispositions,” and the timing of the Trump administration’s executive order.
Wurman’s approach to the question is purportedly originalist—a method of judicial interpretation that’s the house theory of the Republican-appointed Supreme Court majority, framed as making rulings in alignment with the original public meaning of the Constitution. In his longer paper and his amicus brief to the Supreme Court in this case, Wurman travels as far back as King Henry I in the twelfth century in an attempt to show that by the time Congress formally adopted birthright citizenship in the 1860s, it was affirming a common law rule that would have actually excluded many US-born children.
But most originalists, including prominent conservatives, disagree with Wurman. His methods, reasoning, and scholarship has drawn criticism from several adherents of the approach, who accuse him of being sloppy at best and dishonest at worst. “He misstates what the rule [imported from England] is,” says Keith Whittington, an originalist law professor at Yale University. “He mistakes what the legal history of that rule is. He misstates the logic and implications of the rule. He misstates the justification for the rule.”
“Wurman should never be trusted with historical work again,” Anthony Michael Kreis, a professor at Georgia State University College of Law and fierce Wurman critic, posted recently on Bluesky. “In any respectable academic field, we’d be talking about article retractions. It is simply that bad.” In an email, Kreis, whose scholarship focuses on the historical development of American law, further condemned the efforts by proponents of restricting birthright citizenship. “I have never seen so much methodologically bankrupt, motivated faux scholarship,” he wrote. “The level of hackery is astounding… If people wanted to be fiction writers, they should’ve pursued another career.”
Wurman’s allegiance-for-protection argument falls apart first and foremost because it makes no sense. Everyone—including Wurman—agrees the whole point of the Citizenship Clause was to overturn Dred Scott and make both the formerly enslaved and free Black people citizens. But enslaved people trafficked here never chose to be in this country let alone offered it allegiance, nor did they benefit from any protection of the laws. A birthright citizenship rule that followed Wurman’s theory would have defeated the 14th Amendment’s purpose. It’s also unlikely that this conundrum wouldn’t have been raised during the congressional debates. “That should just be fatal” to his argument, says Shugerman, who co-authored an amicus brief contesting Wurman’s scholarship.
Confederates fighting the federal government would also have fallen outside of Wurman’s theorized allegiance-for-protection compact, but no one in Congress wondered if rebels’ children born during the war were citizens. On the contrary, in 1867, Sen. John Bingham convinced his colleagues that the former confederates remained “subject to” US “jurisdiction” and thus their citizenship couldn’t be stripped under the 14th Amendment. Since the confederates were considered guilty of treason for waging a war of secession, the meaning of the word “jurisdiction” clearly did not imply allegiance of the parent at birth as a prerequisite for the child’s citizenship.
In an email, Wurman disagreed, defending his theory’s compatibility with these facts. “The freed people, as the Republicans stated over and over again, were under the protection of the United States and had no allegiance to any foreign power,” he wrote. “As for the international slave trade, illegally transporting someone into slavery is hardly the same thing as an alien voluntarily coming in violation of the law.” Confederates, he continued, “could be tried for treason precisely because they were under the protection and therefore within the allegiance of the sovereign. It is actually the conventional view of practical control over territory that cannot account for the children born of confederates.”
“One of the challenges, I think, of grappling with [Wurman’s] work over time is he keeps changing what he claims to be the argument, and what he claims is the main contribution of his argument,” says Whittington, who submitted an amicus brief opposing the Trump administration. “It has very much been a moving target.” Whittington has engaged with Wurman’s theories and debated the issue with him, but finds it a frustrating exercise of being sent on “wild goose chases.” He adds: “If you start looking at the sources he’s citing, they often just don’t say what he says they say, and the underlying logic and principles that he’s trying to convey don’t work.”
“This argument would blow up the 14th Amendment.”
One example is Wurman’s framing in his testimony to a Senate panel of the opinion of a 19th century legal scholar, expressed in a 1836 treatise, that the children of temporary visitors born on US soil should not be citizens, as having been a statement of fact. “I’m afraid I can’t just sit here and say nothing when another law professor gives false testimony to Congress,” posted Evan Bernick, a 14th Amendment expert at Northern Illinois University’s College of Law who co-authored a book with Barnett on the amendment’s original meaning. Bernick described Wurman’s approach as “worse than looking through history for your friends—it’s pretending that they’re your friends.”
To advance his case beyond the allegiance-for-protection framework, Wurman suggests that the parent must be completely bound by the nation’s laws—what he refers to as “complete jurisdiction.” A key condition to meeting this threshold is being domiciled in the United States, having a permanent home, and intending to stay.
The parental domicile condition, if accepted by the court, would open a Pandora’s Box as to who could qualify as domiciled in the United States for the purposes of citizenship. The meaning of “domicile” could be adjusted by Congress, allowing it to, as the civil rights groups opposing Trump warn in their own brief, “decide who is entitled to birthright citizenship, by enacting statutes to manipulate domicile rules.” The president might also claim the power to decide which visa holders could or could not have citizen children. “This argument would blow up the 14th Amendment,” says Shugerman, which was at heart designed to keep politicians from consigning disfavored groups to an inferior status.
Wurman disputes this. “I think domicile has a well-established legal meaning: permanent abode and intent to remain,” he emailed. “The real question is whether unlawfully present aliens could unilaterally establish a domicile contrary to the sovereign’s consent. There aren’t many legal sources touching on that question, although the Roman jurists thought the sovereign’s prohibition defeated domicile.”
Rome aside, there is virtually no historical evidence establishing a domicile requirement in the United States. Wurman and the government cite a single private letter from Illinois Senator Lyman Trumbull to President Andrew Johnson saying that precursor legislation to the 14th Amendment extended citizenship to “all persons born of parents domiciled in the United States”—but that sheds little light on public understanding of the meaning of the amendment. Otherwise, the domicile thesis largely rests on sources from after the amendment was ratified, when immigration restrictionists fruitlessly attempted to exclude the descendants of Chinese immigrants from birthright citizenship by constructing a permanent residency condition. Wurman and the Trump administration’s domicile argument follows this ugly tradition.
“The process of watching this argument evolve has been, I think, a demonstration of the dangers of cherry picking with an ideological agenda,” says Shugerman. “I call it Control F-around and find out.”
Perhaps the best refutation of Wurman’s position is the ultimate timidity of his own amicus brief before the Supreme Court. In public and on social media, Wurman is uncompromising in his views. But in the final analysis, synthesizing his best arguments for the nine justices, Wurman’s brief oozes with self-doubt. His conclusions are tempered by words like “likely,” and questions on which he is strident in public are described as “difficult.” His key claim that undocumented parents are not subject to the United States’ complete jurisdiction is reduced to a suggestion: “Whether unlawfully present aliens are subject to the complete jurisdiction of the United States is less clear, but three reasons suggest they are not.” His contention that temporary visitors were excluded from birthright citizenship becomes “at best unsettled.” “The Wurman brief,” as one amicus brief against the government noted, “deserves plaudits for the candid way that it highlights the weaknesses of its own argument.”
In response to a question about whether he harbored doubts, Wurman wrote that he is “100 percent certain that the answer to the constitutional question is not obvious and that the conventional wisdom is not compelled.” He added that he is “sufficiently confident in my research and argument that if I were a judge, I would leave the question of temporary visitors and unlawfully present aliens to the political branches. But as with many constitutional questions, there is plenty of evidence on both sides.”
Wurman’s originalist offering isn’t the only intellectual defense of Trump’s executive order. In their own amicus briefs, Richard Epstein and John Eastman suggest a different path to a reading of the Constitution where citizenship derives from parentage, not birth on US soil alone. They both agree that common law is irrelevant because Americans broke the shackles of the English ways when they declared independence and, with it, threw away the idea that citizenship is determined by place of birth. In this new country where “all men are created equal,” they argue, citizenship was inherited.
Epstein, an often-cited law professor affiliated with NYU and the University of Chicago Law School, entered the fray shortly after the president signed his January 2025 executive order instructing federal agencies to prospectively stop issuing documents recognizing citizenship to the children of certain immigrants. In an article against universal birthright citizenship, Epstein questions it “as a matter of principle” and criticizes the “dominant view,” endorsed even by conservative jurists, because it glosses over the “obvious perverse incentives of encouraging illegal immigration by allowing the parents to have their newborn children profit from these parental wrongs.”
“In this case, the arguments about domicile and allegiance are wrong answers.”
Epstein, a libertarian, has resisted reparations for Black Americans and called for the repeal of employment discrimination laws. While he describes himself as generally “pro-immigration,” he expressed skepticism of birthright citizenship as far back as 2015, when Trump first assailed the constitutional guarantee as a magnet for illegal immigration and birth tourism. In an episode of his podcast from that year, Epstein said that a constitutional amendment to change the rule, however unlikely, risked creating “major social dislocations” and making the issue more intractable. He also predicted the question would find its way to the Supreme Court, where the status quo would likely prevail. In 2018, as Trump considered issuing an executive order to end birthright citizenship, Epstein said that he thought that couldn’t be done: “The president is not a great constitutional lawyer,” he explained.
Other Epstein predictions haven’t aged well. Early in the Covid-19 pandemic, he published an article that reportedly circulated among Trump administration officials suggesting the “full state of panic” over the virus was overblown and some experts’ “doomsday scenario” was not supported by evidence. Despite not being an epidemiologist, the article borrowed from his previous writing on AIDS in the 1980s to project that just 500 people would die of Covid-19 in the United States.
As criticism mounted, Epstein issued a correction, blaming the absurdly low number on bad math and describing it as an “unforced intellectual error” and the “single worst public-relations gaff I’ve made in my entire life.” But his revised essay still decried state mandates as “one-man gubernatorial dictatorship[s],” defended the notion that “allowing the virus to run its course” would benefit the economy, and estimated US deaths would peak at just 5,000; according to the CDC, there were over one million Covid-19 deaths in the country by 2023.
Today, Epstein, who has an upcoming book on the “myth” of birthright citizenship, claims the conventional view on the issue is wrong and ignores or misinterprets the “entire weight of the historical evidence.” He says the British rule of citizenship by place of birth did not carry over to the United States, minimizing the relevance of writings by English common law authorities embracing that doctrine. The citizenship clause, he writes, “is best understood as excluding individuals born in the country to aliens, legal or otherwise,” a broad assertion that sidesteps all arguments about the parents’ domicile or allegiance.
He claims that early US naturalization laws govern the status of children born in the United States to noncitizen parents. Because these statutes required the parents to renounce ties to foreign governments to become naturalized and excluded several groups from the prospect of citizenship, Epstein argues automatic citizenship shouldn’t be granted to children born on US soil to immigrants. In other words, he argues children’s fate should be determined by the legal status of their parents.
In an email, Epstein dismissed his critics as “sloppy” and refuted the view that Trump’s executive order would recreate a caste system in the United States. The case to restrict birthright citizenship, he wrote, “rests solely on constitutional” principles. He also reinforced his belief, presented in his Supreme Court brief and shared by some opponents of the prevailing view of birthright citizenship, that the Supreme Court wrongfully decided the issue in the landmark 19th century Wong Kim Ark case. Faced with the question of whether Ark, the San Francisco-born son of Chinese parents, could re-enter the United States as a recognized native-born citizen, a majority held that the 14th Amendment followed common law and “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.” If Wong Kim Ark “cannot be overruled,” Epstein puts to the justices, “it must at least be cabined.”
Epstein and others go further to say that, even if the decision in Wong Kim Ark had been correct, it still didn’t settle the question of citizenship for the children of undocumented immigrants because Ark’s parents, although barred from naturalization due to anti-Chinese exclusion laws, were lawful residents. To that point, they single out mentions of domicile in the court’s ruling.
That line of reasoning isn’t entirely new. Instead, it borrows from a playbook Eastman, who Epstein taught, has been promoting for 20 years to claim the 14th Amendment has been misinterpreted. Eastman, the intellectual godfather of the anti-birthright citizenship movement, submitted his own amicus brief in this case. Like Wurman, he stresses a domicile requirement, and also argues that the Citizenship Clause requires a parent be under the country’s complete jurisdiction, which he says can only be achieved through “mutual consent and allegiance.”
“It just wasn’t very good.”
But Eastman’s arguments differ somewhat from Wurman’s—and may give the justices an easier path to side with Trump. Whereas Wurman offers an alternative history to rewrite English common law away from citizenship by place of birth, Eastman, like Epstein, argues the American revolution rejected the English rule of birthplace to adopt one based on parentage. While Epstein urges the court to limit or overturn Wong Kim Ark, Eastman now says the court can just leave that precedent alone—the case was about a child of domiciled parents and poses no actual barrier to Trump’s executive order.
Unlike Wurman, the tone of Eastman’s amicus brief is unapologetic. Currently battling disbarment in California for using his legal skills to try to overturn the 2020 election, Eastman does not shy away from bold stances, and the Trump administration’s own brief tracks more closely to his theories—though it declines to cite him. While the government does reference Wurman, it does not bear hug his arguments—likely a testament that he has not, in their view, invented a smarter route to victory after all.
Indeed, the new wave of scholarship that emerged on the heels of the Trump administration’s January executive order to rehabilitate the originalist historical case against birthright citizenship, Whittington says, stands on no firmer ground than the predecessor arguments advanced by Eastman. “The problem is that Eastman had already constructed about as good of an argument as could have been constructed,” he said. “It just wasn’t very good.” (Eastman didn’t respond to a request for comment.)
When the Trump administration argues before the justices on Wednesday that the entire country has gotten the Citizenship Clause wrong for 150 years, this is some of the scholarship upon which they will rest their case. The government weaves together threads from Wurman, Eastman, and Epstein: that jurisdiction means allegiance, that domicile is required, and that granting citizenship to the children of undocumented people rewards bad behavior. “If the Roberts Court is serious about originalism as a method, then there are right and wrong answers,” says Shugerman. “In this case, the arguments about domicile and allegiance are wrong answers.”
There is no good reason for the court to accept the government’s arguments—or Wurman’s, or Eastman’s, or Epstein’s. There is no there there: Just an administration trying to undo the 14th Amendment and create a nation of inherited status, where one’s place in society depends on your parents’ background rather than your own abilities. At least on paper, that idea was rejected a long time ago.
