Error #1: The citizenship clause merely adopted the pre-Dred Scott common law rule that everyone born in the United States is automatically a citizen.

In 1856, the Supreme Court held in the infamous case of Dred Scott v. Sandford that the U.S.-born descendants of African slaves were not and could never become citizens, even though under the traditional common law rule, a person automatically became a citizen of the nation on whose soil he or she was born. The plaintiffs contend that the 14th Amendment’s citizenship clause was intended to restore this earlier common law rule of universal birthright citizenship.

They support this claim with a single, highly edited quotation from Sen. Jacob Howard, a Republican from Michigan, who was instrumental in drafting the citizenship clause: “This amendment … is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is … a citizen of the United States.” //

Instead, Howard was referring to the Civil Rights Act of 1866, which was valid federal law. That act was Congress’s first attempt to override Dred Scott, and statutorily defined birthright citizenship for the first time in American history: “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

Far from being an adoption of common law universal birthright citizenship, the Civil Rights Act intended to bestow birthright citizenship only on the children of those who, like the newly freed slaves, owed complete allegiance to the United States and were subject to the fullest extent of its political jurisdiction. //

Indeed, the most damning indictment of the plaintiff’s contention comes from the very quotation they use to support it—at least when that quotation isn’t disingenuously edited. The very next line of the quote, which the plaintiffs in this lawsuit conveniently cut, reads: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

This clearly demonstrates that Howard believed they weren’t constitutionalizing the common law rule, but rather a rule that—consistent with the Civil Rights Act’s focus on allegiance to foreign powers—was much more selective in its bestowal of birthright citizenship. //

Error #2: This is an unprecedented action—the executive branch has long recognized that it can’t deny citizenship to children based on the immigration or citizenship status of their parents.

This assertion is only true if history begins in the first half of the 20th century. Unfortunately for the plaintiffs, it doesn’t. In the decades following the ratification of the 14th Amendment, the federal government regularly articulated a view of the citizenship clause that’s remarkably similar to that espoused in Trump’s order, and the executive branch issued citizenship documents accordingly. //

Error #3: The Supreme Court confirmed in Wong Kim Ark that the citizenship clause automatically bestows citizenship on the U.S.-born children of noncitizen parents.

Contrary to popular assertions, this is not what the Supreme Court held in the 1898 case of Wong Kim Ark v. United States. The question decided by the court in that case was far narrower: whether a child born in the U.S. to lawfully present and permanently domiciled immigrant parents was a U.S. citizen. And the court concluded that, indeed, the U.S.-born child of this narrow and specific subset of noncitizen parents is a citizen. //

In fact, the court repeatedly emphasized the lawful and permanent domicile of Wong Kim Ark’s parents, factors that are utterly irrelevant under the common law. A true common law opinion would have said, “He was born on U.S. soil, his parents aren’t diplomats or part of some invading army, so therefore he is a citizen.”

This is also why, for decades after Wong Kim Ark, leading constitutional law scholars continued to articulate a distinction between American birthright citizenship—“where the alien must be permanently domiciled”—and birthright citizenship under English common law, which applied even to temporary sojourners. //

Error #4: The president’s order will leave many children deportable and stateless.

It would rarely, if ever, be true that a U.S.-born child of illegal or nonpermanent resident aliens would be left stateless simply because he or she isn’t automatically granted U.S. citizenship. Virtually every nation (including the United States) recognizes some manner of citizenship “by blood,” under which a child is automatically eligible for citizenship when one or both parents are citizens, even if that child is born abroad. //

The plaintiffs, meanwhile, don’t bother articulating a single set of circumstances under which a U.S.-born child of foreign nationals would ever be completely ineligible for—or disqualified from—citizenship or nationality in every other country the world due to a confluence of legal technicalities and the fact of his or her birth on U.S. soil.