Why Barnett and Wurman Are Wrong about Trump's Attempt to Abolish Birthright Citizenship

My new column for The Hill explains why Trump’s attempt to abolish birthright citizenship is unconstitutional, even though Randy Barnett and Ilan Wurman believe he has a good case. Here is the gist:

Two prominent law professors have taken Trump’s side, contending in a New York Times opinion essay that the president actually has a good case. 

They are wrong. Trump’s executive order grievously misconstrues the 14th Amendment, and the professors’ support for it is badly misguided.

The greatest danger of Barnett and Wurman’s theory is that it would create a perpetual underclass of individuals excluded from the social contract. That is precisely the evil the 14th Amendment’s birthright clause intended to remedy.

The premise of the Dred Scott case, per Chief Justice Roger Taney, was that Black people, whether enslaved or free, could never be members of the American “political community,” and thus had no claim to citizenship. 

It took a constitutional amendment to undo the damage by, as the Supreme Court said in Wong Kim Ark, placing it “beyond doubt that all blacks, as well as whites, born . . . within the jurisdiction of the United States are citizens of the United States.”

Barnett and Wurman’s theory would recreate a similarly inferior status for the children of “unlawful entrants,” casting them permanently outside the national social contract solely by virtue of their birth. That is not merely a faulty argument; it is a pernicious one.

You can read the complete essay at The Hill.