Respondent-side amicus briefs were due at the Supreme Court Thursday and (as one would expect) quite a few were filed (via SCOTUSblog). A common theme of many is that the President’s executive order limiting birthright citizenship conflicts with the original meaning of the Fourteenth Amendment. Among the most important originalist-oriented briefs :

Brief of Professor Akhil Reed Amar.

Brief of Scholars of Constitutional Law and Immigration, filed by the Constitutional Accountability Center.  I joined this brief, which I think is an excellent statement of the core textualist/originalist case.

Brief of Professor Keith Whittington, based on his outstanding originalist article.

Brief of Originalist Scholars Evan D. Bernick and Jed H. Shugerman, which has interesting new historical sources and arguments.

Brief of Federal Indian Law Scholars Gregory Ablavsky and Bethany Berger

RELATED: I have posted a revised version of my forthcoming article Birthright Citizenship Re-Examined on SSRN. Thanks to Larry Solum at Legal Theory Blog for making it “Download of the Week.”

ALSO RELATED, somewhat on the other side, at the Harvard Journal of Law and Public Policy Per Curiam: Elias Neibart (Harvard J.D. ’25), Indians and Citizenship: Territorial Birth & Parental Status in Contemporaneous Caselaw. From the introduction (footnotes omitted):

Soon, in Trump v. Barbara, the Supreme Court will weigh in on the question of birthright citizenship. At issue is one sentence 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 Court will have to confront what exactly it means to be “born . . . subject to the jurisdiction” of the United States.

Originalist scholars have weighed in. On one side of the debate is Professor Ilan Wurman. He has argued that “birthright citizenship depended largely, even if not exclusively, on the status of the parents as being within the allegiance and under the protection of the sovereign.” If a parent was “within the allegiance and under the protection of the sovereign,” he was subject to the sovereign’s complete “municipal jurisdiction.” And, if that were the case, any children that parent had would be bona fide citizens of the polity. Others disagree with Wurman’s focus on parental status. Professor Keith Whittington, for example, has argued that, “except under very narrow exceptions,” “[c]hildren born within the territory of the United States are natural-born citizens.” The status of one’s parents, in this account, is largely immaterial. As long as you are “born within the governing authority of the nation,” you “are thereby subject to its jurisdiction.” For Whittington, citizenship hinges upon where you are born. The status of Indians presents a conceptual problem for Whittington’s view. After all, those born to “parents in a Native American tribe” are “born within the geographic territory of the United States.” But it’s widely understood that those children are not citizens under the Fourteenth Amendment. Whittington deals with this issue by arguing that “[t]he critical point . . was that Indians born on tribal lands were foreigners to the United States.” But, for him, “the land is doing the important work. Indian land is within the territory of the United States but is not governed by the United States.” To Whittington, “the Reconstruction Congress was . . . concerned with whether ‘Indian country’ was governed by American law.” Put another way, the central question was whether a child was born on “sovereign territory” (i.e., Indian land).

But what if a Native American parent had a child outside Indian country? Or, alternatively, what if an American had a child inside Indian country? Would the child of a Native American parent be born an American? Would the child of the American parent be born a tribal member? If not—if citizenship didn’t track location but instead tracked parental status—cracks would start to form in Whittington’s territory-centric view.

This short essay sheds light on these questions. It presents a handful of cases—all of which have been largely overlooked in the recent literature—that call into question this territory-focused conception of citizenship. Shortly after the Fourteenth Amendment was ratified, courts were asked to determine the citizenship status of litigants and parties before them: Were they Indians or United States citizens? What the following demonstrates is that courts did not adopt a territory-centric view of citizenship. A child might still be considered an Indian even if he was born outside tribal land. And a child might still be considered an American even if he was born within tribal land. Rather than focusing on the location of birth, courts often probed the legal status of the child’s parents. Of course, none of this evidence answers the ultimate question in Barbara. This essay just speaks to one of the issues in that case: Do we look at location of birth or parental status? Consistent with the history recounted in this paper, it may still be the case, as prominent originalist Professor Michael Ramsey has argued, that temporary visitors and those here unlawfully are “subject to the jurisdiction” of the United States; as such, their children would be citizens under the Fourteenth Amendment. But this essay’s findings do suggest that birth in a particular territory alone was not the decisive factor in citizenship determinations.

This essay has some interesting new history that mostly hasn’t been addressed in leading accounts. I’ll leave it to Professor Whittington to say whether it is a substantial challenge to his view. As the last paragraph of the introduction anticipates, I don’t think it’s a substantial challenge to my view (though still very interesting). In my view Native Americans were excluded from constitutional citizenship if they were born within the authority of the tribe (meaning they were subject to tribal law, and not U.S. law, as to ordinary intra-tribal matters such as torts and crimes). This status did not necessarily turn on the place of birth, but rather on who claimed principal authority (“jurisdiction”) over them. The cases that the essay discusses appear to confirm this view. And I don’t think this approach to native tribes has any firm analogy to other categories of persons, such as temporary visitors or persons unlawfully present, who had a very different relationship to U.S. law.