Bernick v. Wurman on Birthright Citizenship and the 14th Amendment

Professor Evan Bernick recently guest blogged here about birthright citizenship, challenging those who have put forward revisionist arguments about the scope and import of the citizenship clause in Section One of the Fourteenth Amendment.

Bernick recently debated one of those revisionists, Professor Ilan Wurman, at the recent Federalist Society Third Circuit Chapters Conference. It was a civil and highly substantive debate focusing on the original meaning of the Fourteenth Amendment. I confess it did not change my views on the subject, but I found it quite worthwhile. It can be viewed below.

To my mind, Prof. Wurman’s arguments challenging the conventional account of birthright citizenship are interesting, but ultimately fail to establish the lawfulness or constitutionality of the Trump Executive Order. At most, they suggest that there might be some room for Congress (should it choose to legislate on the topic) to redefine the conventional understanding of what it means for someone to be born in the United States “subject to the jurisdiction thereof.”  They do not suggest that the President may unilaterally redefine the settled and long-followed meaning of the citizenship clause embodied in federal law.

I should add that the Bernick-Wurman debate–like much of the recent public debate on birthright citizenship–proceeds on the assumption that the question should be resolved by reference to the original public meaning of the Fourteenth Amendment, and not on various living constitutionalist theories. As I have noted before, though, if one rejects this premise, the case for the conventional account of birthright citizenship becomes less clear. If one believes either that courts should be particularly deferential to the political  branches or should embrace evolving constitutional meanings in response to political and other developments (such as an election in which a prevailing candidate advocated a contrasting constitutional interpretation), one might well conclude that the traditional understanding of citizenship is up for grabs. Similarly, if one embraces a capacious understanding of Congress’s power to enforce the Fourteenth Amendment under Section Five, it would seem to follow that Congress has more authority to redefine the contours of birthright citizenship than some suppose.  Food for thought.

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