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In two weeks, the Supreme Court will hear oral arguments in Trump v. Barbara, the term’s vitally important birthright citizenship case. On April 1, the court will address whether the words in the 14th Amendment, “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,” apply to children born in the United States to parents who are not U.S. citizens or permanent residents at the time of their birth. Because so many of us approach this issue with an imperfect understanding of the American history of migration, deportation, citizenship, and nationality, a whole lot of bad originalism seeps into the legal discourse about an issue so crucial that the drafters of the 14th Amendment chose to locate it in the Constitution itself. On this week’s Amicus podcast, Dahlia Lithwick spoke to Anna O. Law, the Herbert Kurz Chair in Constitutional Rights at CUNY Brooklyn College. Her new book, Migration and the Origins of American Citizenship, will be published on March 24. You should not listen to the oral arguments in this case without understanding the long and complicated history of American citizenship. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: You start the book by just staking out this elaborate mythology that we all seem to buy into about how migration worked throughout American history. And as you say, this is “belied by actual historical fact, by actual political practice.” What is it that most of us are told about how citizenship has been handled from the Colonial era until today, and how wrong have most of us gotten that history?

Anna O. Law: The biggest myth about American immigration is that until the federal government started enforcing our borders in the late 19th century, it was just open borders. And so everybody who wanted to come could just show up, work hard, and it feeds right into the American dream myth, right? My ancestors came with nothing but the clothes on their back and a willingness to work hard. But the period before the federal government took over immigration didn’t mean there were no laws and that there were no migration restrictions. There’s plenty of work and existing scholarship that says the states were enforcing migration laws in the 19th century. But since I started in the Colonial period, I realized, and it even shocked me, that some of the stuff in U.S. immigration law today, like “likely to become a public charge,” that says People who can’t economically take care of themselves: We don’t want them, well that originated in the Colonial period. So stretching from the Colonial period to 1888, first the colonies, and then the states had elaborate sets of laws recruiting certain groups of people to come and restricting other people so they could not come.

Bad originalism works because it mines these deeply held myths, these altogether false narratives about American history. And it sounds plausible even when it’s wrong. In your introduction, you quote Yale Law School’s Jack Balkin, reflecting upon “the use of collective memory in a constitutional argument.” And the sin here is: In not knowing more about how early immigration, migration, citizenship laws, naturalization policies work, we distort our collective memory and then start telling stories about the American dream, and everybody could come and go, and doors were flung open, and it was a land of equal opportunity. And that actually has not just political effects on the conversation we have about citizenship, but an actual legal effect on the stories we then tell at the Supreme Court.

What we know and what we don’t know about immigration and citizenship history has so many political effects and legal effects, because the myth goes: We were very generous for a very long time, and at some point that had to stop because of the ills of mass migration. And the federal government’s entry into migration sounds benevolent, but only one state had benevolent migration laws, and that was New York. All the other states, who controlled international and interstate migration, were restrictionist. The state of Massachusetts, for instance, was just deporting people to Ireland, to Europe, to other states because they didn’t want to be economically and socially responsible for poor and disabled people. Another example of states running migration is, during this long period, from the Colonial period to 1888, states also controlled internal migration. So slav​​e states could ban free Black people—not enslaved people, but free Black people as well—from being in their borders and could dictate the conditions of why and how long they can stay.

In all of the tension around the founding and the founding documents, there lurks this question of Native American belonging and exclusion and citizenship. 

The Trump v. Barbara case is about birthright citizenship. When we talk about U.S. citizenship, there is a tendency to assume that, Well, of course everyone wants legal citizenship because it means access to rights, privileges, and protections. But for Native people, that is not to be assumed, because Native people, Indigenous populations, have a distinct relationship to the land as well as to the U.S. government and state governments. Native people, not all of them wanted U.S. citizenship. What they most wanted was their sovereignty and their land ownership respected. So citizenship was not always a great thing for Native Americans. They don’t want rights given to them by settler governments. They want their own right of self-determination and self-government in their Native nations. How citizenship has been used by the federal government toward Native Americans has been not to grant rights, but to take away their collective rights that are secured through treaties. And so the orientation of African Americans, Chinese immigrants, or any immigrants to the United States, the goal is to gain legal citizenship. But for Native Americans, that is not at all the goal. Some choose American citizenship to stay on their land, but that also means that they are now subject to U.S. laws and they have cut ties to their tribal nations.

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It’s just not possible to understand the debate we are having right now without locating it in the Reconstruction Amendments and the creation of formal Black citizenship and the conferring, finally, of birthright citizenship to the children of those who were born legally on American soil. And also, finally vesting authority in the federal government and not in the states. This purported to lift up former enslaved people, but the results were very mixed for other groups that were not white.

The 14th Amendment and the birthright citizenship clause in particular is one of the high points of U.S. history. But because what I did in this book was to study groups of people that are usually studied separately, in different bodies of scholarship, when I cut through those disciplinary silos that I saw, the birthright citizenship clause and the 14th Amendment is not a tide that lifts all boats. And the birthright citizenship clause makes very clear for African Americans, both formerly enslaved and who were free Black Americans, that they are unquestionably U.S. citizens. The 13th and 14th Amendments, though, have negative effects for Chinese immigrants. Chinese immigrants started arriving in the United States in significant numbers in around 1850 in California. And because of the 13th Amendment’s passage, the country was very anti-slavery. They had just fought a civil war over slavery, but Chinese immigration comes to be portrayed in the national press and in public opinion over time as unfree immigration. And Chinese migration was so different from enslavement, but it gets painted as slavery, as a kind of unfree labor, and that paves the way for one of the first federal immigration laws after the federal government’s takeover of immigration, the Chinese Exclusion Act of 1882, which excludes all Chinese laborers, which is basically all Chinese immigration. And that was not completely lifted until 1965.

Can you please unpack the really freighted language in the birthright citizenship clause that is “subject to the jurisdiction thereof.” I think we thought we knew what it meant. And suddenly it’s up for debate. 

When the Framers of the 14th Amendment wrote that provision, “subject to the jurisdiction thereof,” it was pretty clear they meant everyone except certain very narrow categories of exclusion. So for example, they don’t mean children born to diplomats who are serving in the United States. They don’t mean Native Americans, and they don’t mean children born to invading soldiers. Those were the clear categories, but today I hear bizarre interpretations of what that means. And by bizarre, I mean ahistorical and wrong. I hear arguments that it was about the children whose parents were temporary immigrants. That’s not what they were talking about. A common argument I’ve heard is, Well, there were no illegal aliens back then. Well, actually there were unauthorized people, if you want to call them that, [under] just over a century of state laws. So there are plenty of people who had broken some of those laws. And then if you only want to restrict it to federal immigration law, the Congress passed a law in 1808 banning the international slave trade and still ships are smuggling enslaved people in. And so the Framers of the 14th Amendment knew about that. They knew about those ships coming in. They knew about the hundreds of African enslaved people smuggled in after the 1808 congressional ban. So there were unauthorized people in the U.S. And did the 14th Amendment include their children? Yes, it did. And they knew that. But the group that the Congress and public opinion most despised at the time were the Chinese immigrants in the West. And there are extensive discussions about, Surely you don’t mean the birthright citizenship clause to mean the children born to Chinese immigrants? And the Framers said, No: Yeah, we mean them. Because even though their parents cannot gain citizenship because there are laws banning them from naturalization, we do mean the children.

Can you lay out for us, based on your scholarship in this area, why the 14th Amendment Framers chose to use the words “all persons” when they decided to bestow American citizenship to those born on American soil, why those words were important and why that has to be the lodestar here?

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It’s very significant. They could have said that the rights of equal protection and due process are for all citizens. They chose not to use all citizens. It says “all persons.” And I think they were very mindful of the fact that a bloody civil war had just concluded. They were mindful of the fact that states had been discriminating against Black people. And it’s the states who were going to do any sort of discrimination. So by saying “all persons,” they are now making clear that U.S. citizenship stands above state citizenship and that the federal government will enforce the protections of state citizenship. So it is enormously important that they meant all persons, including Chinese people who are not citizens, who then used the federal courts to fight against the Chinese Exclusion Act, and they did so very successfully. One thing I think readers really need to know is that the birthright citizenship provision is in the U.S. Constitution as an amendment and not a law passed by Congress. Why did they do that? The Framers did it the hard way. They went through the Article 5 process of changing the Constitution instead of just passing a law. Birthright citizenship first comes up in the Civil Rights Act of 1866. But the Framers were worried, If it’s just a law passed by Congress and the president, then a future Congress could pass another law wiping it away, or a future Supreme Court could come along and wipe it away. So by putting it in the Constitution, they meant to make it more durable. They meant to raise the bar of what it would take to amend it and to get rid of it and to change it. And so birthright citizenship is not just a law passed by Congress. And you certainly cannot change it by executive order.

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