Anthony Michael Kreis (Georgia State University – College of Law), Evan D. Bernick (Northern Illinois University – College of Law), & Paul A. Gowder (Northwestern University – Pritzker School of Law) have posted Birthright Citizenship and the Dunning School of Unoriginal Meanings (111 Cornell Law Review Online (forthcoming 2025)) on SSRN. Here is the abstract:
This essay critically surveys the recent debate surrounding birthright citizenship in the United States, particularly in light of arguments presented by legal scholars Randy Barnett and Ilan Wurman. Under the guise of "originalism," Barnett, Wurman, and others propose an ahistorical, revisionist interpretation of the Fourteenth Amendment's Citizenship Clause. They suggest that the term "jurisdiction" should be understood as "allegiance," seemingly to give the veneer of legitimacy to the Trump Administration's view that the children of undocumented immigrants may not be American citizens. The essay argues that Barnett and Wurman's approach, which attempts to radically redefine the historical understanding of citizenship, is methodologically flawed and undermines core principles of constitutional law. The critique exposes the inaccuracies and inconsistencies in their position and scrutinizes the scholarly merit of new theories of birthright citizenship that are wildly inconsistent with constitutional text, history, precedent, and unbroken tradition. The essay concludes by examining the professional responsibility of legal scholars to engage in rigorous, fact-based historical analysis rather than politically motivated reinterpretations that threaten to destabilize fundamental constitutional rights.