Where the Right-Wing Campaign Against Birthright Citizenship Comes From—and Why It’s Wrong
What a shock: The MAGA-loving Claremont Institute and John Eastman of “coup memos” notoriety are the biggest boosters.
DONALD TRUMP ON HIS FIRST DAY BACK in office issued an executive order purporting to end birthright citizenship, the principle, grounded in the Fourteenth Amendment, that anyone born in the United States, regardless of parentage, is an American citizen. Back in 2023, when he announced his plans to do this on Day One, Trump claimed that “many scholars” have shown that birthright citizenship is based on a “historical myth” and a “willful misinterpretation” of the Fourteenth Amendment, and he declared that he could undo it simply through a “correct interpretation” of the amendment.
And so the executive order he issued hours after being sworn instructs that “no department or agency . . . shall issue documents recognizing United States citizenship” for babies born in the United States without at least one parent who is a citizen.
Trump’s executive order is going to be hotly contested in the courts. Twenty-two states (as of this writing) have sued to stop the order, and the ACLU is preparing a lawsuit as well. There is a strong argument that the president’s action is unconstitutional.
Let’s set aside for a moment the questions of the legality and constitutionality of Trump’s action and ask instead: Where did he get this idea? How did eliminating birthright citizenship become a right-wing desideratum?
There is no mystery as to where this is coming from. The idea that birthright citizenship is a false interpretation or recent innovation that warps the intended meaning of the Fourteenth Amendment has been pushed into mainstream Republican circles by the tireless work of John Eastman and the Claremont Institute. See, for instance, this 2011 debate between Eastman and Ediberto Roman in the Florida International University Law Review. Or this 2008 article by Eastman in the University of Richmond Law Review. The Claremont Institute, where Eastman has long been a leading figure, and which has continued to employ him even after the scandal arising from his authorship of the notorious “coup memos” in 2020, has for years now been pushing the idea that the Fourteenth Amendment was never intended to provide citizenship to the children of illegal immigrants.
Other luminaries at the MAGA-adoring academic think tank have also sounded off about birthright citizenship, such as Michael Anton—now an official in Trump’s State Department—in essays like this bizarre 2018 rewrite of American history.
Today, Eastman published an article on a Claremont Institute website crowing about Trump’s action: “Birthright Citizenship: Game On!” He lists several of the Claremont scholars who have written on birthright citizenship, and says he hopes the “Claremont Institute’s long-standing view” of the issue will soon be vindicated by the Supreme Court.
JUST ONE PROBLEM: All the claims from MAGA and the Trumpians that the Fourteenth Amendment was not intended to extend citizenship to the children of illegal immigrants falter when confronted with the obvious truth that the Fourteenth Amendment, upon its adoption, did extend citizenship to a very large number of children of illegal immigrants.
Let’s take a step back. The Constitution as originally ratified put the authority to ban the slave trade under the authority to regulate immigration—not the authority to regulate property. Here’s Article I, Section 9: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” In other words, slaves who were brought in to the country contrary to federal law were to be considered illegal immigrants, not illegal property.
Congress banned the slave trade in 1808—but that ban was far from perfect. Thousands of slaves were smuggled into the United States between 1808 and 1860. It’s impossible to know the exact number—W.E.B. Du Bois pegged it at 250,000, although contemporary scholarship suggests it was lower—but whatever the figure, we have interviews with quite a few of these individuals’ children, like James Cape, Ben Simpson, and Josephine Howard, and they talk about where their families came from and how they became American.
Cape, Simpson, and Howard were among the thousands of children of illegal immigrants who were granted citizenship by the Fourteenth Amendment.
EASTMAN AND HIS COMRADES at the Claremont Institute base their theory upon an interpretation of a particular phrase in the Fourteenth Amendment: “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 claim is that the word “jurisdiction” really means “allegiance”; children born to illegal aliens here in the United States owe their allegiance to whatever country their parents are from.
But America has never recognized the doctrine of enforced allegiance. We actually went to war with Great Britain over this. In the 1790s, British warships began boarding American vessels and impressing Americans into the Royal Navy. Britain did not recognize American naturalization. Once an Englishman, always an Englishman.
America rejected Britain’s claim.
Perhaps the clearest and most famous statement of American policy on this issue is to be found in the Burlingame-Seward Treaty, ratified by the Senate on July 28, 1868—by coincidence the exact same day Secretary of State William Seward announced the ratification of the Fourteenth Amendment. Here’s the relevant passage from the treaty:
The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from the one country to the other, for the purposes of curiosity, of trade, or as permanent residents. [Emphasis added.]
There is no such thing in American jurisprudence as enforced allegiance. Allegiance must be voluntary.
If the Claremont Institute’s theory were correct—if it were true that children born in the United States owe their allegiance to their parents’ country of origin—then children born to Americans overseas would automatically owe their allegiance to the United States. They would never be asked to swear allegiance to something that was already required of them.
But there was a time when they were required to swear allegiance. Here’s a passage from the 1907 Expatriation Act:
Sec 6. That all children born outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninety-three of the Revised Statutes of the United States and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching 18 years to record at an American consulate their intention to become residents and remain citizens of the United States, and shall be further required to take the oath of allegiance to the United States upon attaining their majority.1
Donald Trump and the revisionists at Claremont are clearly wrong. The phrase “subject to the jurisdiction thereof” does not mean children born on U.S. soil to illegal immigrants owe their allegiance to a foreign government. No one owes their allegiance to anyone.
FINALLY, IT’S WORTH NOTING that birthright citizenship is hardly an innovation of recent years; it has a provenance that goes back to the early days of the republic, in the sense that it was written into the Fourteenth Amendment to counter long-simmering proposals for the mass deportation of blacks. Jefferson, Madison, and many other Southerners wished to combine emancipation of slaves with mandatory deportation.
Here is an anonymous letter of protest (under the pen name “A Freeman”) in the Maryland Gazette, dated December 30, 1790:
We have no just right to export [or] banish any man, unless he previously violates some law, which inflicts transportation as a just punishment for his crime.—A different sentiment cannot correspond with the idea, that “all men are born equally free, and in point of human rights to liberty, stand on equal ground.” But where would you export them to? They are as much Americans now as we, and we as much European as they are Africans—Nothing but a mind influenced by prejudice or partiality can countenance or contemn this idea or argument. [Emphases in original.]
But of course the United States did have a mass deportation authorized by Congress—the Indian Removal Act of 1830, with its infamous Trail of Tears. In August 1825, an essay in the Georgia Journal under the pen name “Socrates” lays out the Southern argument: “If they [the federal government] make a citizen of an Indian, what hinders them from making a citizen of a free negro, and if they can make a citizen of a free negro, what hinders them from naturalizing slave negroes?” (emphases in original).
The deportation of non-citizens was the answer in Georgia—especially since Native Americans (who then numbered around ten thousand) possessed one-quarter of the present-day state.
Mass deportation of nonwhites was still very much on the table after the Civil War. A week after surrendering to Ulysses S. Grant at Appomattox Court House on April 14, 1865, Robert E. Lee (who was to become the most visible symbol of Southern resistance) sat down with a reporter from the New York Herald:
The best men of the South have long been anxious to do away with this institution, and [are] quite willing to-day to see it abolished. They consider slavery forever dead. But with them, in relation to this subject, the question has ever been, ‘What will you do with the freed people?’ That is the serious question to-day, and one that cannot be winked at. It must be met practically and treated intelligently. The negroes must be disposed of.
Almost a year later, on February 17, 1866, Lee once again expressed his support for the deportation of blacks. During congressional hearings on Reconstruction, Rep. Henry Taylor Blow (R-Mo.) asked Lee: “Do you not think that Virginia would be better off if the colored population were to go to Alabama, Louisiana, and the other southern States?” Lee responded: “I think it would be better for Virginia if she could get rid of them. That is no new opinion with me. I have always thought so, and have always been in favor of emancipation—gradual emancipation.”
Emancipation plus deportation. This was the preferred Southern plan. And had been from the very beginning. This is why the Fourteenth Amendment was written the way it was written—why birthright citizenship was the intention.
Not that the adoption of the Fourteenth Amendment extinguished the racist impulse to deport. A version of the “back to Africa” plan was endorsed by the most die-hard America Firsters—the ones who stuck to their racism and isolationism even after Pearl Harbor. Here is an excerpt from the America First party platform, August 1944:
Noting that 20,000 part-Negroes become recognized as whites annually. And noting also that it will be harder to solve the problem of 40,000,000 Negroes in our midst in the future than of 13,000,000 today, and believing that it is unfair to both races to have to live together, we advocate a return to the solution long ago proposed by Thomas Jefferson and successively advocated by many other Presidents . . . namely, implementing the Negroes’ right to return to the homeland and environment in which nature first nurtured them.
The Fourteenth Amendment establishes birthright citizenship. Its purpose is clear. It is meant to prevent Congress or the president from deporting people who are born on American soil—including those accused of “poisoning the blood” of this country.
Today, children in such cases are no longer required to swear an oath of allegiance. One practice still around today that drives home the point that America is not a land of enforced allegiance: the Pledge of Allegiance, familiar to schoolchildren everywhere.
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