A Conspicuous Gap May Undermine Trump’s Birthright Citizenship Plan
2025/12/23 1 Comment
Interesting argument:
In asking the Supreme Court to let him do away with birthright citizenship, President Trump has urged the justices to restore “the original meaning” of the 14th Amendment.
What the amendment meant when it was ratified in 1868, Mr. Trump’s lawyers said in a brief, was that “children of temporary visitors and illegal aliens are not U.S. citizens by birth.”
The court will hear arguments in the spring to decide whether that is right. There are many tools for assessing the original meaning of a constitutional provision, including the congressional and public debates that surrounded its adoption.
But one important tool has been overlooked in determining the meaning of this amendment: the actions that were taken — and not taken — to challenge the qualifications of members of Congress, who must be citizens, around the time the amendment was ratified.
A new study to be published next month in The Georgetown Law Journal Online fills that gap. It examined the backgrounds of the 584 members who served in Congress from 1865 to 1871 and found good reason to think that more than a dozen of them might not have been citizens under Mr. Trump’s interpretation of the 14th Amendment. But no one thought to file a challenge to their qualifications.
That is, said Amanda Frost, a law professor at the University of Virginia and an author of the study, the constitutional equivalent of the dog that did not bark, which provided a crucial clue in a Sherlock Holmes story.
The study raises new questions about Mr. Trump’s legal battle to narrow protections under the 14th Amendment’s citizenship clause, which says: “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.”
The Constitution requires members of the House of Representatives to have been citizens for at least seven years, and senators for at least nine. It adds that each House “shall be the judge” of its members’ qualifications.
“If there had been an original understanding that tracked the Trump administration’s executive order,” Professor Frost said, “at least some of these people would have been challenged.”…
Source: A Conspicuous Gap May Undermine Trump’s Birthright Citizenship Plan
About Andrew
Multicultural Meanderings 
I skim-read the paper by Frost and Eason. The quality of their research is first-rate. I find it somewhat problematic to argue from a negative: since no-one challenged their citizenship, there must not have been a reason to do so. But I find the proposition interesting and will continue to consider it as the hearing before SCOTUS approaches.