Oral arguments in the Supreme Court’s birthright citizenship case concluded Wednesday, and University of Chicago law professor Richard Epstein, James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer, joined Dan Proft on Chicago’s Morning Answer to offer a withering assessment of the quality of constitutional reasoning on display from multiple justices and to explain why he believes both sides of the argument missed the most important legal materials entirely.
The arguments centered on the meaning of the phrase subject to the jurisdiction thereof in the Fourteenth Amendment’s citizenship clause, which provides that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens. Justice Ketanji Brown Jackson offered a hypothetical during arguments suggesting that the phrase turns on allegiance, which she defined through the example of an American traveling in Japan whose wallet is stolen. Because Japanese authorities can arrest Americans for crimes committed on Japanese soil, and because an American can invoke Japanese law’s protections while visiting, she argued that even a tourist is locally subject to Japanese jurisdiction and therefore owes local allegiance, by analogy making any person present on American soil subject to American jurisdiction in the constitutionally relevant sense. Epstein said the argument reflects a fundamental confusion about the law, noting that the ability of a sovereign to apply its criminal and civil laws to temporary visitors has never, in any legal tradition, been treated as a path to citizenship. Local jurisdiction over conduct and the kind of allegiance that confers citizenship rights are categorically different legal concepts, and conflating them would logically imply that any tourist, student, or temporary worker who sets foot in the United States has established the allegiance necessary for their children to be citizens.
Epstein said both the government’s lawyers and those arguing for birthright citizenship made a strategic choice to avoid the most important legal materials bearing on the question, namely the naturalization statutes enacted by Congress beginning in 1790 and continuing through 1870. Those statutes, he said, contain several provisions directly relevant to the current dispute that neither side wanted to engage because of their uncomfortable historical content. The 1790 naturalization act, which remained operative in its essential structure through 1870, restricted naturalization to free white persons, an explicit racial bar that was not fully lifted for persons of Asian descent until 1943. Because engaging those statutes honestly requires confronting that history, both sides preferred to argue from later case law and the legislative history of the Fourteenth Amendment itself.
The naturalization statutes are nonetheless legally critical, Epstein argued, because they establish two principles that directly govern the citizenship question. First, one requirement of naturalization added by 1794 was that the applicant renounce all loyalties to any other sovereign, which means that a person still traveling on a foreign passport and owing military service obligations to another country has manifestly not satisfied that condition. Second, the statutes consistently provide that the citizenship status of a minor child follows the citizenship status of the parent. If the parent naturalizes, the child becomes a citizen derivatively. If the parent does not naturalize, the child cannot acquire citizenship through the parent. When Justice Jackson asked why the Fourteenth Amendment does not explicitly mention parents, Epstein said the answer is that it did not need to, because the naturalization statutes already handled that question comprehensively and the amendment was written against that statutory backdrop.
He reserved particular criticism for the treatment of the 1898 Wong Kim Ark case, which is the primary precedent cited by supporters of current birthright citizenship policy. Epstein said the case was decided at a moment when persons of Asian descent were categorically barred from naturalization under federal statute, which created a problem for the court that it resolved not through honest statutory analysis but through what he called judicial fidgeting around the general problems of the naturalization act. The doicile concept, meaning the notion that a parent’s intent to remain permanently in the United States is relevant to the child’s citizenship, was introduced in Wong Kim Ark not because it appears anywhere in the naturalization statutes but as a workaround for the racial bar that would otherwise have precluded citizenship. Because nobody in the current proceedings wanted to engage with that history, both sides ended up arguing about a doctrinal concept whose origins lie in a racially motivated judicial improvisation rather than in the actual statutory text.
The government’s lawyer, Solicitor General John Sauer, chose to argue for Trump’s position by accepting Wong Kim Ark as correctly decided and arguing that it nonetheless does not compel birthright citizenship for children of temporary visitors or illegal entrants, since the case involved a permanent legal resident and contains no mention whatsoever of illegal entry. Epstein said that approach was strategically understandable but analytically incomplete, because accepting Wong Kim Ark means accepting the doicile framework that the case introduced, which then requires courts to determine parental intent in ways that create administrative complexity. The cleaner path, in his view, runs through the naturalization statutes, which answer the question directly without any need for intent inquiries, but that path requires engaging materials that both sides found politically inconvenient.
Justice Samuel Alito offered what Epstein described as the argument’s most illuminating exchange, presenting the hypothetical of a boy born in the United States to an Iranian father who entered illegally. Under Iranian law, that boy is automatically an Iranian national at birth and owes military service obligations to Iran. The question of whether such a child is subject to any foreign power, the phrase used in the Civil Rights Act of 1866 that the Fourteenth Amendment was designed to constitutionalize, has a straightforward answer in Epstein’s view: yes, he plainly is. The ACLU’s lawyer responded that the same logic would have denied citizenship to the children of Irish, Italian, and other immigrant groups who were nationals of their parents’ countries under jus sanguinis laws, but Epstein noted that the critical distinction those cases involve is that the parents came legally, which was precisely Alito’s point.
Epstein closed by criticizing Chief Justice John Roberts for suggesting that the Constitution means the same thing regardless of how social circumstances change, a statement Epstein said reflects a failure to read the actual statutory history of the early republic, in which the first six provisions of the 1870 naturalization act were specifically designed to tighten immigration requirements in response to fears of demographic change. Getting the constitutional history right, he said, requires reading all of the relevant statutes, not one or two landmark cases, and the arguments on Wednesday suggested that comprehensive historical grounding was largely absent from both the bench and the bar.