D. Carolina Núñez and Lucy Williams (Brigham Young University – J. Reuben Clark Law School) have posted Apophatic Interpretation, Birthright Citizenship, and the Anti-Aristocratic Constitution, BYU Law Research Paper No. 26-12, on SSRN. Here is the abstract:
In January 2025, President Trump issued an executive order declaring that children born in the United States to undocumented residents or temporary visitors are ineligible for birthright citizenship. The order threatened to upend nearly 150 years of precedent interpreting the Fourteenth Amendment to guarantee citizenship to every child born on U.S. soil. It also reignited a decades-old academic and political debate about what it means to be “subject to the jurisdiction” of the United States as the Fourteenth Amendment’s Citizenship Clause requires. For the last 40 years, participants in this debate have used various interpretive methods—especially textualist and originalist approaches—to seek the affirmative meaning of the Citizenship Clause. In this Article, we depart from that conventional approach by introducing a new interpretive framework, which we call “apophatic interpretation.” Modeled after apophatic or “negative” theology and philosophy, which explores concepts and ideas through negation, apophatic interpretation does not seek to identify what the Constitution affirmatively means. Instead, it identifies the values, systems, and institutions that the Constitution deliberately eschews and derives constitutional meaning(s) from those rejections. Applying this framework, we demonstrate that the Constitution is a profoundly anti-heredity document that comprehensively and emphatically rejects inherited civic status in all its forms. We trace this commitment across multiple constitutional provisions. We begin with the Guarantee Clause, which ensures republican government fundamentally incompatible with hereditary rule. We then turn to the Titles of Nobility Clauses, which specifically embody a rejection of hereditary civic privilege, and the Corruption of Blood Clause, which rejects hereditary civic disability. We argue that these provisions, taken together, form an integrated anti-hereditary architecture that forecloses any interpretation of the Fourteenth Amendment conditioning citizenship on parental status.
Highly recommended.
Apophatic interpretation is related to constitutional pluralism via the constitutional values modality. For background, see the Legal Theory Lexicon entry on Constitutional Pluralism.