Frost and Eason on Birthright Citizenship and Congressional Qualifications

Amanda Frost, University of Virginia School of Law, and her UVA law student, Emily Eason, have posted The Dog That Didn't Bark: Eligibility To Serve In Congress And The Original Understanding Of The Citizenship Clause, which appeared in Georgetown Law Journal Online, and is the subject of a New York Times column by Adam Liptak.  Here is the abstract:

Jefferson Davis Contemplates Hiram Revels (LC)
President Donald J. Trump's 2025 Executive Order restricting birthright citizenship has prompted new interest in the interpretation of the Fourteenth Amendment's Citizenship Clause. This Essay analyzes an overlooked source of the original understanding of that Clause: the meaning of "citizen" when determining whether members-elect are qualified to serve in Congress. The U.S. Constitution requires that every member of Congress be a U.S. citizen, and further provides that each House "shall be the judge" of members' qualifications. Anyone is permitted to challenge a member-elect's qualifications to serve, and hundreds of such challenges have been brought over U.S. history. Accordingly, challenges to members-elect's citizenship--as well as the absence of such challenges--shed light on the original understanding of the Citizenship Clause. 

Using a variety of archival sources, we have researched the ancestry of all 584 members of the Thirty-ninth (1865-67), Fortieth (1867-69), and Forty-first (1869-71) Congresses, and found more than a dozen whose citizenship would be suspect under President Trump's interpretation of the Citizenship Clause. Yet no one questioned these members' citizenship despite the contentious political environment that inspired frequent qualifications challenges on a variety of other grounds. This dog that didn't bark provides further evidence that the Trump administration's novel interpretation of the Citizenship Clause is inconsistent with the original understanding. 

We conclude with an observation based on long hours of tedious research: Determining the status of immigrants arriving in the early nineteenth century--an era with few immigration records and minimal enforcement of existing state-based restrictions on immigration--is often impossible, and always onerous. The difficulty of the task alone is evidence that no one at the time of ratification could have seriously thought that U.S. citizenship turned on such questions. 

--Dan Ernst 



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