Three days after President Donald Trump began his second term, Judge John Coughenour, a Reagan appointee, became the first judge to block Trump’s attempt to strip citizenship from many Americans who were born in the United States. “I’ve been on the bench for over four decades,” Coughenour said at the time, adding that he “can’t remember another case where the question presented is as clear as this one is.”
Coughenour was the first of many judges to strike down a Trump executive order, which purports to strip citizenship from the children of undocumented immigrants and immigrants who are lawfully present in the United States, but only temporarily.
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The fate of Trump’s anti-citizenship order is now before the Supreme Court, in a case known as Trump v. Barbara, and the legal case against it is about as airtight as these cases get. The Constitution’s 14th Amendment says that “all persons” born in the United States are citizens, with one narrow exception that does not apply in Barbara. And the Supreme Court settled this question nearly 130 years ago in United States v. Wong Kim Ark (1898).
- Trump’s legal arguments against birthright citizenship are exceedingly weak.
- His administration’s chief argument was first developed in the 19th century by white supremacists who wanted to deny citizenship to Chinese Americans.
- Yet even in an era of open white supremacy, 19th-century courts did not accept the argument as grounds for denying citizenship to children of Chinese immigrants.
Yet, while Trump’s legal arguments in Barbara are exceptionally weak, they aren’t exactly new. Indeed, they are quite old. As law professor Sam Erman and historian Nathan Perl-Rosenthal explain in a recent paper, a white supremacist lawyer named Alexander Porter Morse — the same lawyer who would go on to argue the pro-segregationist side in Plessy v. Ferguson (1896) — masterminded a failed effort to weaken the 14th Amendment in the late 19th century, largely to deny US citizenship to Americans of Chinese descent.
The Supreme Court put that effort to rest in Wong Kim Ark. But Trump’s unusual arguments in the Barbara case closely mirror an early version of the anti-Chinese citizenship argument devised by Morse and other similarly minded lawyers. Trump’s brief in Barbara twice cites an 1881 book by Morse, which made this early case against citizenship for Chinese Americans, as well as several other writings by advocates and scholars who shared Morse’s goals.
Morse argued in 1881 that the 14th Amendment, which provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” should be read to deny citizenship to “children of foreigners transiently within the United States.”
The heart of Trump’s brief is a list (on pages 26–28) of quotations from 19th and early 20th century books and law review articles that make the same argument Morse made in his 1881 treatise. Trump’s lawyers claim that the 14th Amendment does not apply to “children of temporarily present aliens or illegal aliens.”
The mere fact that an argument existed in the late 19th century does not prove it was widely accepted, or even that it enjoyed any meaningful support. According to Erman and Perl-Rosenthal, even Morse eventually rejected the anti-citizenship argument he made in his 1881 book, telling the American Bar Association in an 1884 speech that tying citizenship to whether the parents are permanent residents of the United States “utterly fails to furnish a convenient or practical rule of decision.” (Although Morse came up with other legal arguments seeking to diminish the 14th Amendment.)
Trump, in other words, seeks to justify his anti-citizenship order using a century-and-a-half old idea that was swiftly rejected even by its most prominent 19th-century proponent.
What the 14th Amendment actually says, and why Morse wanted to change it
The 14th Amendment provides that “all persons” born in the United States are citizens, with the exception of newborns who are not “subject to the jurisdiction” of the United States. The word “jurisdiction” means that someone is subject to US law. So, if Trump were correct that the children of undocumented immigrants or temporary visitors to the United States are not citizens, it would mean that the federal government could not deport them. Or even arrest them if they rob a bank.
In modern America, this “subject to the jurisdiction” exception to birthright citizenship primarily applies to the children of ambassadors and other foreign diplomats whose families enjoy diplomatic immunity from US law. But, as the Court explained in Wong Kim Ark, the exception also was intended to exclude many Native Americans, who were considered to be citizens of their tribal nations and not of the United States. (Congress extended full citizenship to “all noncitizen Indians born within the territorial limits of the United States” in 1924).
A minority of lawmakers objected to the 14th Amendment’s goal of extending citizenship to nearly everyone born in this country — sometimes naming racial or ethnic groups that they deemed unworthy of citizenship. In an 1866 congressional debate, for example, Sen. Edgar Cowan complained that the “child of the Chinese immigrant in California” and the “child of a Gypsy born in Pennsylvania” should not be citizens.
After the 14th Amendment was ratified, many advocates who shared Cowan’s views started devising legal arguments seeking to exclude disfavored racial groups from citizenship. At the time, Morse was a former Confederate army officer and newly minted lawyer who swiftly became a prominent figure in the newly emerging field of international law. He would become a leading American advocate for the concept of jus sanguinis, or “right of the blood” citizenship — the idea that a child’s nationality should be determined by the citizenship of their parents.
Of course, Morse’s biggest obstacle, as an advocate seeking to make jus sanguinis the law in the United States, is that the 14th Amendment explicitly rejects this theory of citizenship. So the white supremacist lawyer spent much of his career attempting to shoehorn his preferred theory into constitutional language that would not support it, often advancing theories that sought to deny citizenship to immigrants from non-European nations.
His 1881 book, A Treatise on Citizenship, by Birth and by Nationalization, was an early attempt to do so. Though Morse conceded that the “main purpose of” the 14th Amendment’s Citizenship Clause was to “establish the citizenship of the negro,” he claimed that the amendment “exclude[s] the children of foreigners transiently within the United States.”
This argument plays a starring role in Trump’s Barbara brief, which opens with the line “The Fourteenth Amendment’s Citizenship Clause was adopted to grant citizenship to freed slaves and their children—not to children of temporarily present aliens or illegal aliens.”
To a modern reader, the connection between Morse’s claim that the children of transient visitors to the United States are not citizens, and the broader goal of denying citizenship to Chinese Americans, probably isn’t obvious. By the 1870s, many Chinese nationals had immigrated to California, often drawn by work building railroad lines connecting the western state to the rest of the nation. The descendants of these immigrants form much of the large Chinese American community in modern day California and throughout the United States.
These immigrants formed families, started businesses, and many of them spent the rest of their lives in the United States. It is now obvious that these immigrants were no more transient visitors than many European immigrants with similar histories.
But in the 19th century, a common racist trope held that people of Chinese descent were such alien creatures that they were incapable of integrating into American society. An 1877 message to Congress prepared by seven California state senators, for example, complained that Chinese immigrants “seem to be antediluvian men renewed.” The senators claimed that there was “no hope that any contact with our people, however long continued, will ever conform [Chinese immigrants] to our institutions, enable them to comprehend or appreciate our form of government, or to assume the duties or discharge the functions of citizens.”
Morse’s 1881 treatise relied on the work of Francis Wharton, another prominent 19th-century international lawyer whose writings are heavily cited in Trump’s Barbara brief. Wharton focused on the legal concept of “domicile,” or the intention to remain indefinitely in a particular place, and argued that Chinese nationals were so unlike Americans that they were “not capable of naturalization,” assuming that they “do not expect to remain permanently in this country” and that they all “look forward to a return, sooner or later, to China.”
Thus, by linking citizenship to permanent residence, Morse hoped to exclude people of Chinese descent from US citizenship altogether. If Chinese people were truly incapable of permanently settling in the United States, then a rule denying citizenship to the children of temporary visitors would necessarily exclude Chinese Americans.
Even Morse eventually abandoned his own argument from 1881
One problem with Morse’s 1881 theory of citizenship, even from the perspective of white supremacists who shared his goals is that, while anti-Chinese racists may have believed that no Chinese person could intend to live permanently in the United States, a court tasked with determining whether a particular Chinese immigrant wants to remain here permanently must actually base its decision in real facts.
Trump’s lawyers want to implement a 145-year-old idea that was deemed unworkable even by one of its preeminent original champions.
As Erman and Perl-Rosenthal write, a 19th-century Chinese immigrant advocacy group “secured the best lawyers, backed thousands of claims, won most of the time, and pressed expansive interpretations of the 14th Amendment.” Lawyers enthralled with the writings of people like Morse or Wharton could certainly argue that no Chinese immigrant could assimilate into American society or intend to remain permanently in the United States. But advocates for individual immigrants had no trouble finding clients who had assimilated, and who did wish to remain in California or elsewhere in the US.
This is why, only three years after the publication of Morse’s 1881 treatise, he told the American Bar Association that his own proposed test was a failure. Morse abandoned his own argument because it was not prevailing in court.
Of course, Morse and other lawyers who shared his goals devised new strategies to deny citizenship to Chinese Americans — strategies that the Court ultimately rejected in Wong Kim Ark. It is likely that Morse’s claim that citizenship should be tied to permanent residency would be forgotten today, even by most scholars of immigration law, if not for Trump’s lawyers’ decision to revive this claim.
And it would be exceedingly strange if the justices take this claim seriously. The Constitution’s language is clear. The issue was settled in Wong Kim Ark. And Trump’s lawyers want to implement a 145-year-old idea that was deemed unworkable even by one of its preeminent original champions.
