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Birthright Citizenship

Did the Solicitor General Misrepresent Flournoy Article in Birthright Citizenship Oral Argument

It is often useful to consult the original source.

Jonathan H. Adler | 4.9.2026 3:28 PM

One of the Solicitor General's primary claims in the Trump v. Barbara oral argument was that the Trump Administration's position on birthright citizenship aligns with the consensus of commentators in the late 19th and early 20th centuries, the Supreme Court's decision in Wong Kim Ark notwithstanding. Setting aside whether post-ratification commentary is a reliable guide to the original public meaning of a constitutional provision--particularly where, as here, many opponents of the Fourteenth Amendment sought to narrow the scope of its guarantees--many scholars (and amicus briefs) contest the SG's claim.

One point of contention concerns the opinions of Richard W. Flournoy, Jr., an attorney in the State Department who wrote several articles related to citizenship, including "Dual Nationality and Election," 30 Yale Law Journal 545 (1921).

Although the government did not cite Flournoy's article in its opening brief, the SG did mention it at argument. In response to a question from Justice Kagan, the SG said:

I disagree with the way you've characterized the understanding of Wong Kim Ark. And I would point to something that's emphasized in their amici's briefs, which is, in 1921, Richard Flournoy, who becomes a senior State Department official in the Roosevelt administration and pushes their theory as to temporary sojourners, writes a Law Review article in 1921 where he says: I think that children of temporary visitors should be citizens. But he admits that is not the understanding of Wong Kim Ark. He admits Wong Kim Ark did not hold that.

And he admits that there's an array of authorities that go against him. He talks about careful and reliable, high authorities And that's........

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