As is often the case for posts here, due to my slowness in getting stuff ready, this seems possibly out of date already. The Supreme Court already had arguments on Trump v. Barbara, and it appears they will side against Trump (for some good analysis, see this SCOTUS Blog post and also applicable episode of the Advisory Opinions podcast). Of course, oral arguments aren't a perfect indicator of outcome, but in my view the arguments against Trump's position are very strong and I do expect them to rule against him. So this post seems a bit outdated already. Still, it seems worth posting anyway.
This is a follow-up to this prior post, which one should probably read first. But what Trump v. Barbara is about is the Citizenship Clause, the portion of the Fourteenth Amendment which says "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." At issue here is what "subject to the jurisdiction thereof" means. The standard view is that it means subject to the laws of the United States, so the exceptions children of are diplomats and their families (due to diplomatic immunity), Native American tribes on reservations (as they were subject to the laws of their tribes rather than that of the United States), and occupying armies (who have set up their own functional laws).
Some, however, argue for a more restrictive interpretation. In 1898, the Supreme Court ruled in a case called United States v. Wong Kim Ark that the child of two Chinese immigrants (neither a US citizen) who was born in the United States was entitled to citizenship by the Citizenship Clause. Since then, there are three main schools of thought that have emerged. The first is what I described earlier as the common view, that Wong Kim Ark was correctly decided, and that the Citizenship Clause has only narrow exceptions that I detailed. The second is to say that Wong Kim Ark was correctly decided, but that its decision did not apply to children of illegal immigrants and/or temporary residents (some say both, some say only one of these), who are excluded from the Citizenship Clause. The third and final one is to say that Wong Kim Ark was wrongly decided, and that if your parents are non-citizen immigrants (even if both legal and permanent residents), then you don't get citizenship from the Citizenship Clause.
(Note that while all three positions agree that children of Native Americans living on their reservations are excluded, the Indian Citizenship Act of 1924 has conferred birthright citizenship to them. The Citizenship Clause is a floor as to who gained birthright citizenship, not a ceiling)
The first is what seems the dominant view in the judiciary and is my view, the second is what the Trump Administration is advocating, and the third is--or at least was--John Eastman's position.
The issue is now in front of the Supreme Court in Trump v. Barbara. Based on oral arguments, they are expected to affirm the first position... but sometimes oral arguments aren't perfectly indicative of the resulting decision.
On the general issue, others have made better arguments than I can that the first and least restrictive interpretation is the correct one. I recommend in particular Michael Ramsey's article "Birthright Citizenship Re-Examined". This is actually somewhat of a sequel to an earlier article he wrote called "Originalism and Birthright Citizenship", but that one spent about half of its length discussing the "in the United States" portion (which is more contentious than one might think), whereas the first one linked is specifically concentrating "subject to the jurisdiciction". Other useful, though older, articles can be found here and here.
It is regrettable, unfortunately, that so many in the public discourse have approached this case not with the question of "well, what does the Constitution say?" but "what would be good policy?" I suppose the latter would make sense with some interpretative methods. If one ascribes to "Living Constitutionalism" or its conservative counterpart "Common Good Constitutionalism", both of which essentially boil down to "I will interpret the Constitution in what I think would be good policy" (the main difference between the two is Common Good Constitutionalism is a bit more honest about that that's the goal, whereas Living Constitutionalism more frequently hides behind ideas of societal progress). However, if someone holds to originalism, the idea that the Constitution--and laws in general--should be interpreted by what they meant at the time, then the question should not be whether something is good or bad, but whether it is what the Constitution or law actually meant. And as argued in the aforementioned links, I think the evidence is very solid that the original meaning included everyone other than diplomats, Native Americans, and occupying armies.
This issue has, in my mind, exposed many people as fair-weathered originalists; they are perfectly happy to accept originalism when it benefits their preferred policies, but as soon as it goes against their preferred policies, they abandon originalism outright or come up with weak rationalizations to try to back up their claims. Ironically, even though Chief Justice John Roberts does not describe himself as an originalist, in the oral argument he made this point very well in the following exchange:
GENERAL SAUER: No, but, of course, we're -- we're in a new world now, as Justice
Alito pointed out to, where 8 billion people are one plane ride away from having a -- a child who's a U.S. citizen.
CHIEF JUSTICE ROBERTS: Well, it's a new world. It's the same Constitution.
My policy thoughts on the issue of ending birthright citizenship are mixed; I certainly think the blunt manner in which the Trump administration is trying to do so has major problems, for tying it entirely to the biological parentage brings up questions like what to do with someone whose parentage cannot be determined, or cases where who you thought were your parents would qualify (a citizen father and a non-citizen mother), but then you later discover that your mother was cheating on your father with another person who is your biological father, but was not a citizen. Does your citizenship get retroactively removed?
Regardless, the issue here is not a policy one, but a legal one, which is how I have and will approach it in this post.
All of this now brings us back to John Eastman. As noted earlier, he was for a long time a proponent of the most restrictive view of reading the Citizenship Clause. He did not merely think that Wong Kim Ark should be interpreted narrowly (as Trump's position is), but that it was wrongly decided to begin with. I have long found this to be a very weak position. One major issue--not the only one, though--is that it makes complete nonsense of the argument between Senators Cowan and Conness during the Citizenship Clause discussion, where Cowan argues it would be a bad idea to allow children of non-citizens like the Chinese or Gypsies to become citizens, but Conness responds by saying the things Cowan was worrying about are insignificant and that them being citizens would not be an issue. No Senator said they were arguing on mistaken premises--one would think at the very least the person who introduced the Citizenship Clause would have done so, but he gives no objection to this interpretation. Plenty of people have pointed to this Cowan-Conness interaction (along with other things) as evidence against Eastman's position, like Michael Ramsey in the earlier linked article.
Therefore, I had considerable interest in seeing if, after so much discourse and various people criticizing his arguments over the years, he had improved them to better respond to those arguments, and wanted to read his amicus brief. An amicus brief is an essay that a third party to a case submits to the judge in which they make their own arguments, usually in favor of one of the two parties, but sometimes just to assert an alternate view.
I first did so for the prior Trump v. CASA case, which he filed an amicus brief in (again, that analysis can be found here). In that one, he did not argue for the restrictive reading he has long championed, however. Instead, he tried to back up the Trump Administration's reading, though he mentioned in a footnote he thought Wong Kim Ark was wrongly decided, but thought that even under it their reading could be sustained. I noted in my prior examination how the arguments he raised, however, actually conflict with his actual position of the most restrictive reading.
However, as I noted then, Trump v. CASA was really about universal injunctions, even if the underlying issue was birthright citizenship. Since the issue of birthright citizenship was not before the Court directly, trying to stay consistent with precedent makes some more sense. So I thought that maybe when the actual issue went to the Supreme Court, Eastman would try to offer his arguments for his actual position of Wong Kim Ark being wrong and his particularly restrictive position being right.
There are, technically speaking, two amicus briefs he filed (it is filed under the Claremont Institute's Center for Constitutional Jurisprudence; the full list of amicus briefs is found midway through this page). One was before the Supreme Court took up the case, back in October. This one, in truth, really adds very little that wasn't already in the amicus brief we already looked at. After it was formally taken up, he then filed a new amicus brief, and that is the focus of our examination (the one from 1/27). And so I wanted to see it to see if he had finally, after this time, offered anything resembling a good counterargument to the points raised against him.
Much to my surprise, he does not do that. He does not even mention this time around that he thinks Wong Kim Ark was wrong (nor did he in the earlier Trump v. Barbara amicus brief). His entire amicus brief for Trump v. Barbara is advancing Trump's position on the subject, and (much like his amicus brief in Trump v. CASA) in contradiction to his own opinion. He makes arguments that actually do much to disprove his own most restrictive opinion.
Why does he do this? Why does he abandon the position he has spent so long arguing for? I already gave possible explanations for Trump v. CASA, but those explanations do not seem to apply this time around.
There is unlikely to be a better opportunity in his lifetime to overturn Wong Kim Ark. That's what he has so long argued for. So one would logically think he would use this one-of-a-kind opportunity to make his case to the Supreme Court that they should go even farther than even Trump wanted and to say the Fourteenth Amendment doesn't give birthright citizenship to anyone not born of a citizen. But... he doesn't.
So why does he argue for Trump's interpretation rather than the interpretation he's been advocating for so long? Well, there are several possibilities.
One is that Eastman legitimately changed his mind in the intervening period between Trump v. CASA and Trump v. Barbara. It's been less than a year between them, but that is still more than enough time for someone to undergo a change of opinion in something. It does not seem likely that he would have done so given he's been arguing this for so long, but it is not impossible. However, I am not aware of him declaring any such change (if he did, one is free to tell me) and the amicus brief makes no mention of it. So this one seems unlikely.
The second is that he is arguing for the more reserved idea because he does not think the Supreme Court would go so far as to overturn Wong Kim Ark. But in the past he filed amicus briefs arguing such a thing, so why not now when the possibility, while still low, is better than any other prior decision? Why, indeed, file an amicus brief at all to just express the redundant position that others have (but which you do not actually hold) instead of bringing up something more unique by advocating your actual position? Again, it is very noticeable that arguments he makes in this brief actually contradict his previously stated position that Wong Kim Ark was wrong and that children of even legal permanent residents do not receive automatic birth citizenship in the United States. So while again possible, it doesn't make that much sense to me if this is the explanation.
The third is that Eastman is abandoning his principles due to partisan bias. He previously was advancing this claim that Wong Kim Ark was wrong, but that isn't compatible with Trump's position; again, Trump's position is that children of legal permanent residents do receive birthright citizenship, and therefore attempts to narrow Wong Kim Ark rather than completely overturn it. It is this position that Eastman is now advocating. This would mean Eastman is abandoning his own principles and opinion in order to try to argue that Trump is right because he's a strong Trump supporter. That is not a good look, to abandon one's principles for partisan politics, however distressingly common it is (unless his original position was arrived at due to partisan bias, and he was only changing it due to the political winds switching a bit).
Maybe there is some other explanation, but those are the ones that come to mind. The first would be the most understandable--people can legitimately change their minds--but I'm not aware of him making any such statements. The second is one that seems to not make much sense, as it would be giving up this opportunity to advance his actual position in favor of just repeating the same claims others have largely done. And the third means he's just a partisan hack.
All of this greatly dampened my interest in it, as he's simply abandoned his prior position. My interest in this was to try to see if he had come up with better arguments to answer his critics, such as if he by now had managed to come up with an actually decent argument about how his position makes any sense given the Cowan-Conness exchange (he had offered arguments previously, but they were not very good, and I wondered if he had improved). But it seems that his response has instead been to abandon his arguments entirely and argue for something different.
Beyond that, though, most of what he says in his amicus brief is just the same arguments as he made in Trump v. CASA, so I would just refer any reader to look back at my analysis of that. There is really only one particularly notable new point he makes, which I will address. On page 14, it attempts to address the fact the New York Court of Chancery case Lynch v. Clarke gave a broad interpretation of who born in the United States gains automatic citizenship by bringing up a different case:
More fundamentally, in a subsequent flip-side-of-the-coin case, the New York Supreme Court (the State’s intermediate appellate court), held that the children of those “traveling or sojourning abroad,” “though born in a foreign country, are not born under the allegiance, and are an exception to the rule which makes the place of birth the test of citizenship.” Ludlam v. Ludlam, 1860 WL 7475 (N.Y. Gen. Term. 1860). That decision was affirmed by the New York Court of Appeals, which held: “By the law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular….” Ludlam v. Ludlam, 26 N.Y. 356, 368 (1863) (emphasis in original).
For those who wish to look up the first citation, the "1860 WL 7475" is a Westlaw citation, though it does require access to Westlaw. One might be able to find the citation elsewhere online for free, though I didn't find it. I was able to look at it through my local college, which has a subscription to Westlaw.
I feel that Eastman is misrepresenting the case. The immediate problem with this case is what it was about. Lynch v. Clarke was one where the New York Supreme Court offered a broad interpretation of who is a citizen at birth in the United States (it is thus often cited against those who hold Trump's position). Ludlam v. Ludlam said that a child of an American citizen and a non-citizen, born outside the United States, was a citizen of the United States. Eastman does not disclose this important fact to the reader.
Thus, Lynch v. Clark is directly relevant, whereas Ludlam v. Ludlam is not. However, let's look into the case. Let's talk about the background as explained in the decision. Richard Ludlam was a citizen of the United States born in 1804. In 1822 he moved to Peru, married a woman who was not a US citizen, who gave birth to Maximo Ludlam in 1831 in Lima. He, along with his wife and Maximo, moved back to the United States in in 1837. After doing so, they had another child, Anna Ludlam, this time born in New York. Richard eventually died, but the concern is about the uncle of Maximo and Anna, Thomas Ludlam. Thomas died in 1847, there was a dispute between Anna and Maximo about inheritance; Anna contended that only she was a citizen and entitled to the inheritance, whereas Maximo claimed he was a citizen also and thus the inheritance would be split.
The Court said that due to quirks of when certain laws were passed, no US laws applied to determining the solution to this and thus they had to resort to the common law... which I find a bit confusing, because it seems to me that US law did give the answer. It claims:
"4. The counsel for the plaintiff is right in supposing that there is no statute of the United States which will reach the case. Congress possesses, under the constitution, express and exclusive power to establish a uniform rule of naturalization, and probably, as incidental thereto, to declare, if they see fit to do so, what shall make a man a citizen or an alien. This power has been repeatedly exercised. The first act for this purpose was passed March 26, 1790, which was succeeded and repealed by a second passed January 29th, 1795. By both these statutes it was enacted that all children of citizens, born out of the limits of the United States, should be considered citizens. If either of these acts were in force it would probably determine the present question. But the act of 1795 repealed the act of 1790, as I have stated, and the act of 1795 was itself repealed by a statute passed April 14th, 1802, which only provided that the children of “persons who now are or have been citizens, though born out of the jurisdiction of the United States, shall be considered citizens.” Richard Ludlam, the father of the defendant, was not born until 1804, *491 and hence did not come within the operation of this statute. This continued to be the only act of congress upon this subject until 1855, when an act was passed which will avoid such questions in future cases. But as this descent was cast in 1847, if Maximo Ludlam was then an alien the lands passed at once to the plaintiff, and her title cannot be divested by the character given to her brother by subsequent legislation."
As it notes, the 1802 law "provided that the children of “persons who now are or have been citizens, though born out of the jurisdiction of the United States, shall be considered citizens.”" It appears to me that this should end the inquiry; Richard Ludlam was a citizen and (whether he lost it or not later on) and therefore Maximo was also by this law. The opinion says that Richard was not born until 1804 and did not come under the operation of the statute--but why, given he was born afterwards? Doesn't that mean he would be under the statute? Not that this would seem to matter, for it was Maximo's birth that was at dispute here--Richard was unquestionably a citizen. Maybe there was something in the lower court not mentioned here that explained it, but it looks to me like the case is simple under US laws.
But at any rate, the New York Supreme Court said that the laws of the US at the time didn't apply, and it went on to say they would simply resort to the common law to decide the issue. It concluded Richard had never lost his citizenship and therefore it was conferred to Maximo.
The portion that Eastman quotes comes from the start, where it says:
"By the common law, when a subject is traveling or sojourning abroad, either on the public business, or on lawful occasion of his own, with the express or implied license and sanction of the sovereign and with the intention of returning, as he continues under the protection of the sovereign power, so he retains the privileges and continues under the obligations, of his allegiance, and his children, though born in a foreign country, are not born under foreign allegiance, and are an exception to the rule which makes the place of birth the test of citizenship."
However, one notices that this says nothing about the citizenship of the person in the country they were born in. Eastman seems to be presenting this as an either/or, when in fact someone can be a citizen of multiple countries at birth even under the paradigm that Trump and Eastman are advocating. Indeed, in the New York Court of Appeals decision affirming the New York Supreme Court decision (which is available online) essentially says Maximo appears to be a citizen of both countries:
"If we assume that the laws of Peru are similar to ours on the subject of citizenship, there is no doubt that Maximo Ludlam would be, in that country, regarded as a citizen of Peru. (1 Sandf. Ch., 583.) This would involve him, according to the rules which I find established, in a double allegiance, to this country and to Peru; and it cannot be denied that inconveniences might result from such a condition. The case, however, is not new, and I am not aware that any practical inconvenience has ever resulted to persons occupying such positions; their immunity in this respect resulting, mainly, it may be presumed, from the liberality of civilized governments toward persons thus situated."
Notice particularly its mention that "if we assume that the laws of Peru are similar to ours on the subject of citizenship" it notes that Maximo would be a citizen of it... meaning, by extension, if circumstances were reversed (his parents were from another country but he was born in the United States), he would be a citizen of the United States. It is true, of course, that this was all prior to the Fourteenth Amendment so it does not inherently follow that this continued to that point, but remember Eastman was the one who cited this.
Eastman perhaps could try to dismiss this point by saying that (if the laws of Peru were like that of the US), Maximo's parents were permanent residents and that is what would have given him Peruvian citizenship, and that it does not go against his assertion that children of permanent residents in the US do get citizenship. However, even if so, it means it is of no benefit to his argument that children of temporary or illegal residents are excluded, for it would not prove or disprove anything about them.
So Ludlam v. Ludlam, when read in larger context, appears to not actually offer much support for Eastman, and (arguably) offer support against it. His quotation is misleading, particularly how he does not note that the quoted remarks were specifically about the common law. This issue has not escaped the notice of some who have written amicus briefs; for example, see pages 15-16 of David Boyle's amicus brief on the case (this is not an endorsement of everything in the amicus brief, but the Ludlam quote is handled well there), where he points out these sorts of problems.
And that brings us to the end. We will ultimately see when the decision occurs what happens. But Eastman's brief is certainly a disappointment.