I’m
going
to
offer
some
advice
to
liberals
that,
at
first
blush,
may
grate
but
you
need
to
check
out
Reason.
The
libertarian
blog
features
a
piece
by
Ilya
Somin
that
slaps
back
at
the
idea
that
birthright
citizenship
as
extended
under
the
Fourteenth
Amendment
can
be
undone
by
executive
order.
Which
isn’t
some
wild,
far-left
theory
—
indeed,
conservative
darling
Judge
Jame
Ho
wrote
that
birthright
citizenship
can
only
be
undone
by
constitutional
amendment
(of
course,
that
was
before
birthright
citizenship
became
the
hobby
horse
of
the
Trump
administration
and
Ho
cravenly
changed
his
tune
on
that
one).
Donald
Trump
issued
just
such
an
EO
on
his
first
day
back
in
office,
and
his
administration
is
now
dealing
with
multiple
pieces
of
litigation
as
a
result.
In
furtherance
of
this
Trump
administration
policy,
law
professors
Randy
Barnett
and
Ilan
Wurman
took
to
the
pages
of
the
New
York
Times
Op
Ed.
column
to
lend
the
academic
credibility
of
their
positions
to
the
Trumpian
power
grab.
Barnett
and
Wurman
rely
primarily
on
an
“allegiance-for-protection”
theory
that
predicates
citizenship
on
a
trade
of
one
for
the
other
they
trace
to
an
1862
opinion
by
Attorney
General
Edward
Bates.
Yes,
history
buffs,
you’ll
note
the
date
of
that
opinion
limiting
birthright
citizenship
to
those
who
have
traded
allegiance
for
protection
is
BEFORE
the
passage
of
the
Fourteenth
Amendment
(that,
of
course,
being
the
amendment
that
created
the
birthright
citizenship
right).
Which
seems
like
a
pretty
freakin’
big
red
flag.
And
Somin
further
illustrates
how
dumb
it
is
to
use
this
theory
to
interpret
the
Fourteenth
Amendment:
There
are
several
flaws
in
Barnett
and
Wurman’s
“allegiance-for-protection”
theory.
The
biggest
is
that,
if
consistently
applied,
it
would
undermine
the
central
purpose
the
Citizenship
Clause:
extending
citizenship
to
recently
freed
slaves
and
their
descendants.
Slaves
born
in
the
United
States
(and
their
parents,
who
were
also
usually
slaves)
obviously
weren’t
part
of
any
social
compact
under
which
they
traded
allegiance
for
protection.
Far
from
protecting
them,
state
and
federal
governments
facilitated
their
brutal
oppression
at
the
hands
of
their
masters.This
situation
changed,
to
an
extent,
with
the
abolition
of
slavery
through
the
Thirteenth
Amendment.
But
the
“subject
to
the
jurisdiction”
language
of
the
Citizenship
Clause
refers
to
people
subject
to
that
jurisdiction
at
the
time
they
were
born.
For
example,
the
child
of
a
foreign
diplomat
doesn’t
get
birthright
citizenship
if
her
parents
later
lose
their
diplomatic
immunity.
If
being
subject
to
US
jurisdiction
requires
a
compact
trading
allegiance
for
protection,
former
slaves
obviously
didn’t
qualify.
Thus,
the
Barnett-Wurman
theory
would
defeat
the
central
purpose
of
the
Citizenship
Clause.
That
alone
is
reason
to
reject
it.
Really
though,
the
Barnett/Wurman
piece
is
a
bit
of
a
feat
as
it’s
brought
together
legal
scholars
of
all
stripes
to
condemn
it.
Like
conservative
professor
Michael
Ramsey,
who
has
written
extensively
about
birthright
citizenship,
who
says
(pithily,
imho)
that
the
Bates
opinion
that
the
Barnett/Wurman
theory
is
based
upon
is
of
“only
marginal
relevance”
to
the
analysis
of
originalism
and
the
Fourteenth
Amendment.
Oh,
and,
Barnett/Wurman
misread
Bates.
A
more
liberal
law
professor,
Jed
Shugerman,
also
has
a
lot
to
say
about
the
Barnett/Wurman
piece.
He
dug
into
the
primary
source
in
the
article
(the
Bates
opinion)
and
found
Bates
concluded
in
favor
of
birthright
citizenship,
“The
most
important
point
is
that
Bates
did
not
propose
anything
like
an
allegiance
theory
for
granting
citizenship,
and
he
actually
endorsed
the
birthright
basis
–
explicitly,
and
citing
a
half-dozen
sources
for
the
rule.”
Now
you
might
think
that
this
is
an
awful
lot
of
attention
paid
to
this
1862
Bates
opinion
in
the
rebuttal
of
the
Barnett/Wurman
piece
—
but
that’s
the
thing,
that’s
the
primary
historical
source
in
the
article.
Oh,
and
they
also
cite
Blackstone’s
Commentaries
in
support
of
their
position.
But
Shugerman
really
nails
them
on
this
source
—
one
of
the
“half-dozen
sources”
Bates
cites
in
support
of
the
idea
of
birthright
citizenship
IS
BLACKSTONE.
In
the
last
few
years,
Blackstone
has
been
cited
by
both
sides
of
this
debate.
Barnett
and
Wurman
claim
Blackstone
here
for
their
allegiance-for-protection
theory.
But
their
own
American
source
from
the
mid-19th
century
contradicts
their
use
of
Blackstone.
Not
only
did
Bates
endorse
birthright
citizenship,
he
also
told
us
that
he
considered
Blackstone
an
authority
for
that
position,
too.
It
is
more
important
in
an
originalist
debate
to
understand
how
Americans
of
the
1860s
understood
Blackstone,
and
it
turns
out
that
Bates
is
at
least
a
data
point
that
Americans
thought
it
was
clear
that
Blackstone
supported
birthright
citizenship.
But
Barnett
and
Wurman
do
not
tell
the
reader
that
Bates
not
only
rejected
their
theory,
he
also
rejected
their
interpretation
of
Blackstone.
LOLZ.
Barnett
has
indicated
on
social
media
that
he
has
MOAR!
evidence
to
support
his
point,
but,
I’ll
leave
it
(again)
to
Shugerman
to
state
the
obvious.
None
of
this
is
great
for
the
academic
credibility
of
Barnett
and
Wurman.
But
it
could
easily
result
in
an
opportunity
in
Trumpland
—
they
need
folks
willing
to
go
the
extra
mile
to
make
their
harebrained
legal
theories
stick.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of
The
Jabot
podcast,
and
co-host
of
Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email
her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter
@Kathryn1 or
Mastodon
@[email protected].