Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Barbara, et al.

NO. 25-365

In the

Supreme Court of the United States

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.,

Petitioners,

v.

BARBARA, ET AL.,

Respondents.

__________________________

On Writ of Certiorari Before Judgment to the

United States Court of Appeals for the First Circuit

BRIEF OF AMICI CURIAE

CHARITABLE IRISH SOCIETY OF BOSTON AND

PIONEER NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

Frank J. Bailey

President

PIONEER NEW ENGLAND LEGAL

FOUNDATION

185 Devonshire Street

Suite 1101

Boston, MA 02110

617 877 9511

frank.bailey@pioneerlegal.org

Christopher A. Duggan

Counsel of Record

SMITH DUGGAN CORNELL &

GOLLUB LLP

55 Old Bedford Road

Lincoln, MA 01773

(617) 228-4444

chris.duggan@smithduggan.com

February 26, 2026

SUPREME COURT PRESS

Counsel for Amici Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICI CURIAE ....................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

I.

The Citizenship Clause is Simple and

Direct. .............................................................5

II. Both Supporters and Opponents of

the 14th Amendment Understood that

the Citizenship Clause in Section 1

Granted Birthright Citizenship Even to

the Children of Unwelcome Aliens. ................. 8

III. The Cowan – Conness Debate ....................... 14

IV. Conness and the Electorate ........................... 21

CONCLUSION.......................................................... 23

ii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Barbara, et al v. Trump, President of the

United States, et. al 790 F.Supp.3d 80

(D.NH 2025) ........................................................ 3

Calvin’s Case,

7 Coke Reports (1608) ...................................... 2, 7

Cherokee Nation v. Georgia,

30 U.S. (5 Pet.) 1 (1831) .................................... 13

Dobbs v. Jackson Women’s Health

Organization, 597 U.S. 215 (2024) ................... 24

Doe v. Trump,

157 F.4th 36 (1st Cir. 2025) ............................ 4, 5

Dred Scott v. Sandford,

60 U.S. 393 (1857) ................................... 2, 7, 8, 9

Gibbons v. Ogden,

9 Wheat. 1, 186 (1824)....................................... 24

Inglis v. Trustees of Sailor’s Snug Harbor,

28 U.S. 99 (1830) ................................................. 7

Lynch v. Clarke,

3 N.Y. Leg. Obs. 236,

1 Sand. Ch.583 (1844) ......................................... 7

Mogridge v. United States,

22 Mixed Comm’n on Brit. and Am.

Claims No. 345 (Vol. 18, 1872)............................ 5

People v. Hall,

4 Cal. 399 (1854) ................................................ 19

iii

TABLE OF AUTHORITIES (Cont.)

Page

State v. Manuel,

20 N.C. 144, 4 Dev. & Bat.

(Orig. Ed.) 20 (1838) ............................................ 7

The Schooner Exchange v. McFadden,

11 U.S. (7 Cranch) 116 (1812) ........................... 12

United States v. Wong Kim Ark,

169 U.S. 649 (1898) ............................................. 4

Worcester v. Georgia,

31 U.S. (6 Pet.) 515 (1832) ................................ 13

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV, § 1 ............... 2-6, 8-11, 13-16,

................................................... 18, 19, 21, 23, 24

U.S. Const. art. IV, § 2 ................................................ 9

U.S. Const. art. V ...................................................... 24

STATUTES

8 U.S.C. § 1401(a) ............................................. 3, 4, 25

8 U.S.C. § 262 et. seq. ................................................ 20

Act Prohibiting the Importation of Slaves,

ch.22, 2 Stat. 426 (1807) .................................... 21

Act to Establish a Uniform Rule of

Naturalization (March 26, 1790)

1. Stat. 103 ......................................................... 15

Civil Rights Act of 1866 ...................................... 10, 18

Naturalization Law of 1802, ch. 28, § 1,

2 Stat. 153 .......................................................... 15

iv

TABLE OF AUTHORITIES (Cont.)

Page

REGULATIONS

22 C.F.R. § 79.137 ....................................................... 4

LEGISLATIVE MATERIALS

2 Cong. Rec. 3460 (1874) ............................................ 5

Cong. Globe, 39th Cong., 1st sess. .................. 9-20, 22

EXECUTIVE ORDERS

Executive Order 14160 ......................................... 3, 24

OTHER AUTHORITIES

Akhil Reed Amar,

Born Equal, Remaking America’s

Constitution, BASIC BOOKS (2025)....................... 8

Garrett Epps,

“The Citizenship Clause: A “Legislative

History”,” AMERICAN UNIV. LAW. REV., Vol.

60 (2010) .............................................................. 7

Gregory Ablavsky & Bethany Berger,

“Subject to the Jurisdiction Thereof”: The

Indian Law Context, NEW YORK UNIV.

LAW REV., Vol. 100 (October 2025) ................... 13

James C. Ho,

Defining “American” Birthright

Citizenship and the Original

Understanding of the 14th Amendment,

THE GREEN BAG, Summer 2006, Vol. 9,

No. 4 ............................................................. 13, 20

v

TABLE OF AUTHORITIES (Cont.)

Page

John Denning,

A Fragile Machine: California Senator

John Conness, California History, Vol. 85,

No. 4 (2008)........................................................ 23

John Vlahoplus and Michael Rosin,

Birthright Citizenship of Child Born to

Enemy Alien Visitors, WASHINGTON UNIV.

LAW REV. ONLINE https://wustllawreview.

org/2025/08/14/birthright-citizenship-ofchild-born-to-enemy-alien-visitors/..................... 5

Joseph B. James,

The Framing of the Fourteenth

Amendment, UNIVERSITY OF ILLINOIS

PRESS (1956) ...................................... 8, 16, 21, 22

Kevin Waite, Op. Ed.,

Early California lawmakers also preached

resistance-but against immigration, LOS

ANGELES TIMES (August 3, 2018) ...................... 23

Treaty of Washington, art. XII ................................... 5

U.S. Dept. of State,

8 Foreign Affairs Manual § 301.1-1(d)

(2018) ................................................................... 4

U.S. Minister to China,

Letter of Daniel Cleveland, Esq. to Hon. J.

Ross Browne (July 27, 1868) ............................. 22

U.S. Department of State,

Regulations Prescribed for the Use of

Consular Service of the United States

¶ 137 (1896) .............................................................. 4

vi

TABLE OF AUTHORITIES (Cont.)

Page

William Jay,

A View of the Action of the Federal

Government, In Behalf of Slavery, (https://

catalog.hathitrust.org/Record/009583255 ........ 21

William Speer,

AN HUMBLE PLEA TO THE LEGISLATURE OF

CALIFORNIA ON BEHALF OF THE

IMMIGRANTS FROM THE EMPIRE OF CHINA

(1856) ................................................................. 22

William Speer,

D.D. THE OLDEST AND NEWEST EMPIRE:

CHINA AND THE UNITED STATES, S.S.

Scranton & Co. (1870) ....................................... 22

1

INTEREST OF THE AMICI CURIAE1

The CHARITABLE IRISH SOCIETY OF BOSTON is the

oldest Irish society in the Americas. Founded in 1737,

the Society’s mission was and remains to assist

immigrants to this country transition to a new life in

a free society governed by the rule of law, and to help

them become American citizens if they choose. The

Society’s membership has included Revolutionary

War heroes, such as General Henry Knox, attorneys

promoting the rule of law including Robert Auchmuty,

who joined with John Adams in defending the 29th

Regiment in the Boston Massacre trial, and John F.

Kennedy among many others.

PIONEERLEGAL, LLC (PIONEERLEGAL), doing business as Pioneer New England Legal Foundation

(Pioneer NELF), is a nonprofit, nonpartisan legal

research and litigation entity. PioneerLegal began

operating under its new name, Pioneer NELF, after

forming a strategic alliance with the New England

Legal Foundation (NELF) in May 2025. Pioneer NELF

seeks to continue its own work, as well as NELF’s

mission, by promoting open and accountable government, economic opportunity, freedom of speech, freedom

of association, and education opportunities across the

country, through legal action and public education.

1 No party or party’s counsel authored or financially supported

any of this brief.

2

SUMMARY OF ARGUMENT

The text, history and structure of the Citizenship

Clause demonstrate conclusively that all persons born

on U.S. soil are, from birth, American citizens. This

was accepted law from the nation’s founding until

1857 when Chief Justice Roger Brooke Taney authored

Dred Scott v. Sandford either ignoring or overturning

the law of jus soli which dated at least from Coke’s

description of Calvin’s Case in 1608 and came to

America with the common law. The framers of the

14th Amendment’s Citizenship Clause, the Republican

caucus of the Joint Committee on Reconstruction,

crafted Section 1 in part to overturn Dred Scott and to

restate the long-established principle that everyone

born in America and subject to American law is a

citizen from birth. The status of the child’s parents,

religion, skin color or language are irrelevant. Whether

the child’s ancestors came on the Mayflower in 1620

or were smuggled into America illegally on a pirate

slave ship after 1808 makes no difference. The text

speaks only of the child’s place of birth. “All persons”

means “all persons.”

The precise issue raised by the Government now

was addressed explicitly in the Senate debates in

May, 1866, first in an exchange between Senators

William Pitt Fessenden of Maine and Benjamin Wade

of Ohio and again a week later in a more detailed and

animated debate between Pennsylvania Senator

Edgar Cowan, who opposed birthright citizenship,

and California Senator John Conness, an Irish

immigrant from County Galway, who supported it.

3

Although Cowan and Conness disagreed sharply on

the wisdom of birth citizenship, they both acknowledged that the language of Section 1, if adopted,

would apply even to children of parents from the most

unwanted immigrant classes – for Conness, Chinese

and for Cowan, Gypsies. What mattered then and

what matters now is only where the child was born,

not who the child’s parents were.

The only exceptions to birthright citizenship were

children who were beyond the jurisdiction of American

law at the time of their birth. They fall into three well

defined categories: (1) children of diplomatic families

who had diplomatic immunity, (2) children of invading

armies who temporarily controlled American land;

and (3) tribal Indians who maintained their sovereignty

as quasi dependent nations.

ARGUMENT

The District Court correctly concluded that

Executive Order 14160 (“EO 14160”) violates both the

14th Amendment Section 1 and 8 U.S.C. § 1401(a).

Barbara, et. al v. Trump, President of the United

States, et. al, 790 F.Supp.3d 80 (D.NH 2025). Both the

Citizenship Clause in the 14th Amendment Section 1,

and the statute passed pursuant to that Clause,

guarantee that children born on American soil who

are subject to American jurisdiction are American

citizens from birth. Nothing else is needed. EO 14160

flatly flouts both the statute and the Citizenship Clause

the statute applies and attempts to undermine the

fundamental law as adopted by the People by simple

4

executive fiat. Nowhere in the Constitution is the President granted such sweeping executive power.

This brief addresses a single, narrow question:

when drafted and adopted, was the Citizenship Clause

understood to grant birthright citizenship even to

children of unwanted or “illegal” immigrants? The

answer is unequivocally “yes.” The text, history and

structure of Section 1, and the arguments for and

against it, all compel this conclusion. Crucially, a

pointed debate in the Senate between John Conness

of California, an Irish Immigrant from Galway, and

Edgar Cowan, a states-rights politician from Pennsylvania, shortly before the final Senate vote on the

Amendment, makes it clear that both proponents and

opponents of the Amendment understood that, once

adopted, citizenship would be based upon place of

birth not parentage, lineage, allegiance, consent or

family status.

Every court that has addressed this issue since

United States v. Wong Kim Ark, 169 U.S. 649 (1898),

has upheld birthright citizenship. See, Doe v. Trump,

157 F.4th 36, 77 (1st Cir. 2025) and cases cited. For

more than a century, this has been accepted doctrine

by all three branches of government including the

Executive Branch. 8 U.S.C. § 1401(a) (1952); U.S. Dept.

of State Regulations Prescribed for the Use of Consular

Service of the United States, ¶ 137 (1896); 22 C.F.R.

§ 79.137 (193); U.S. Dept. of State, 8 Foreign Affairs

Manual, § 301.1-1(d) (2018) (“All children born in and

subject, at the time of birth, to the jurisdiction of the

United States acquire U.S. citizenship at birth even if

their parents were in the United States illegally at

the time of birth . . . .). As Judge Barron declared in

Doe v. Trump, “the fundamental question” raised by

5

the scope of birthright citizenship is not difficult. 157

F.4th at 44. The Clause says what it means and means

what it says.2

I.

The Citizenship Clause is Simple and Direct.

It is hard to imagine how the framers of the 14th

Amendment, the Joint Committee on Reconstruction,

2 In 1872, the United States Government successfully contended

that the doctrine of birthright citizenship, jus soli, governed a

claim by Joseph Mogridge for civil damages arising out of the

American Civil War. Mogridge was born in 1813 in the United

States to British parents who were traveling in America during

The War of 1812. The family returned to Britain and Mogridge

claimed to be a British subject. Following the Civil War, Mogridge

pursued a civil damage claim against the U.S. under the Treaty

of Washington (1871) adopted to deal with claims of British subjects against the United States, and of American citizens against

the British Government, arising from actions during the War.

Article XII of the Treaty established a Mixed Commission to

resolve all such disputes. Mogridge brought claims as a British

subject against the U.S., which the U.S. denied claiming that,

because Mogridge was born in the United States in 1813, he was

an American citizen under the governing law of jus soli and could

not bring before the Commission against his own government. In

1872, the Commission sided with the U.S. and dismissed

Mogridge’s substantial damage claim. 22 Mixed Comm’n on Brit.

and Am. Claims No. 345 (Vol. 18, 1872) Counsel for the U.S.,

Robert Hale reported the case to Congress in 1874, explaining

that the Commission accepted the U.S. position that Mogridge

was an American citizen just by his birth while his parents were

traveling in the country. “That is the recognized rule within the

United States; it is specifically provided for . . . by the fourteenth

amendment to the Constitution.” 2 Cong. Rec. 3460 (1874). See,

Birthright Citizenship of Child Born to Enemy Alien Visitors,

John Vlahoplus and Michael Rosin, WASHINGTON UNIV. LAW

REV. ONLINE https://wustllawreview.org/2025/08/14/birthrightcitizenship-of-child-born-to-enemy-alien-visitors/

6

could have been any more clear on birthright citizenship.

The first sentence is direct, succinct and declaratory:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens on the United States and the

state wherein they reside.

U.S. Const. amend. XIV, § 1.

All persons born in the United States are citizens

of the United States. Citizenship derives from birth on

Americal soil. Everyone born in the United States is a

citizen of the United States, if they are subject to the

jurisdiction of U.S. law at birth. This is the birth

equality that was promised in the Declaration of

Independence but withheld from many in practice

prior to the Civil War.

Three points bear emphasis. First, Section 1 speaks

of “persons born,” not to whom they are born. A baby’s

parentage does not dictate who is blessed with the

rights and privileges of American citizenship. Instead,

everyone born in America under the American flag is

an American citizen, if they are subject to American

jurisdiction. People are to be treated on their own

merit, not on the merits of their parents. Feudal class

separation and racial classifications that led directly

to the Civil War were finally ended as part of the fundamental law.

Second, those not “subject to the jurisdiction” of

the United States (and therefore not birthright citizens)

fall into three distinct classes of people only: (1) children of diplomats and their families who enjoy diplomatic immunity; (2) children of Indians who lived on

tribal lands where the reach of United States courts

was restricted by treaty obligations with sovereign

7

Indian nations; and (3) children born to occupying

armies whose nationality is governed by international

law. Otherwise, all persons born in the United States

are American citizens. Garrett Epps, “The Citizenship

Clause: A “Legislative History”,” AMERICAN U NIV.

LAW. REV., Vol. 60, Issue 2 (2010) pp. 349–363.

Finally, the qualifying clause “subject to the

jurisdiction thereof” reinforces the core concept that

citizenship attaches to anyone born under the American flag on American soil. The text includes no qualifiers

such as “exclusive” jurisdiction, “consent to allegiance”

or correct parental lineage. Those who, like the Government, rely so heavily on these qualifiers would have the

Court write provisos and exceptions into the Amendment

that are not there and were not intended. Rather, children born in America, with only a few narrowly tailored

exceptions, are American citizens.

Until 1857, it was commonly understood that free

people born on American soil were, by birth, American

citizens. Lynch v. Clarke, 3 N.Y. Leg. Obs. 236, 1 Sand.

Ch.583, 633 (1844). Even manumitted slaves, if born

on American soil, were citizens upon manumission,

simply by their birth on this land. State v. Manuel, 20

N.C. 144, 4 Dev. & Bat. (Orig. Ed.) 20, 25 (1838); see

also, Inglis v. Trustees of Sailor’s Snug Harbor, 28

U.S. 99, 155-156 (1830) (Story, J. dissenting) (the general principle of the common law is that allegiance and

citizenship vested at birth and is perpetual). It was a

principle based upon natural law that dated from

Coke’s report of Calvin’s Case, 7 Coke Reports (1608)

(“a person’s status was vested at birth and based upon

the place at birth.”)

In Dred Scott v. Sandford, 60 U.S. 393, 407 (1857),

Chief Justice Taney ignored 250 years of settled law

8

by deciding that no Black person, whether slave or

free, and no one of their descendants, could ever be

citizens of America. Skin color and parentage prevented

even people long free who were descended from slaves

or who may have been descended from human beings

who were later were kidnapped into slavery, from

American citizenship. In Taney’s view, the Constitution

was for White men only. Blacks, Dred Scott announced,

were not intended to be included among The People

vested with the rights and privileges of citizenship.

To the drafters of the 14th Amendment, Taney’s

Dred Scott decision was an anathema. Overturning

that odious decision was one of the principal drivers

behind Section 1. Joseph B. James, The Framing of

the Fourteenth Amendment, UNIVERSITY OF ILLINOIS

PRESS (1956) pp. 179-180. But erasing the Dred Scott

stain was not the only reason behind the first section.

It was also crafted to eliminate the racial and classedbased foundation on which the opinion rested. “Citizens

thus defined were to be protected in their privileges

and immunities as citizens of the United States in

whatever state they might reside”. Id. p. 180. From

that point on, it would be understood that people born

in America were born equal. See, Akhil Reed Amar,

Born Equal, Remaking America’s Constitution, 18401920, BASIC BOOKS, (2025), pp, 520-522.

II. Both Supporters and Opponents of the 14th

Amendment Understood that the Citizenship

Clause in Section 1 Granted Birthright Citizenship Even to the Children of Unwelcome

Aliens.

The drafting history of the Citizenship Clause

makes it perfectly clear that the framers intended to

bestow American citizenship on almost everyone born

9

on American soil. Most believed that birth citizenship

had been part of the common law for more than two

centuries before the Civil War which, the Radical

Republicans believed, had been caused, in part, by

Taney’s Dred Scott holding. The drafters on the Joint

Committee on Reconstruction meant to restore birth

citizenship by overturning Dred Scott, and the voters

knew it.

Michigan Senator Jacob Howard, one of 13 lawyers

on the 15-member Joint Committee on Reconstruction

that wrote the 14th Amendment, introduced the first

draft to the Senate on May 23, 1866. The initial draft

of Section 1 had no citizenship clause; birth citizenship

was presumed. It began, “No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States.” Cong.

Globe, 39th Cong., 1st sess. p.2764.

Howard yoked implied birth citizenship to the

express Privileges or Immunities clause. He explained,

“The first clause of this section relates to the privileges

and immunities of citizens of the United States as

such, and as distinguished from all other persons not

citizens of the United States. . . . A citizen of the United

States is held by the courts to be a person who was

born within the limits of the United States and subject

to their laws.” Cong. Globe, 39th Cong., 1st sess. p.2765.

(Emphasis added). Citizenship under the proposed

Section 1 was determined by birth and geography as

it had always been, at least before Dred Scott, in

Howard’s view.

Birthright citizenship and birth equality were not

novel ideas to Howard or to the Committee. Those fundamental principles were rooted in the original

Privileges and Immunities Clause of Article IV, Section

10

2, which was crafted “to put the citizens of the several

States on equality with each other as to all fundamental

rights.” Id. Howard asked rhetorically, “And how did

they antecedently become citizens of the United

States?” People became citizens, Howard explained

“[b]y birth or naturalization. They became such in

virtue of national law, or rather natural law which

recognizes persons born within the jurisdiction of every

country as being subjects or citizens of that country.

Such persons were, therefore, citizens of the United

States as were born in the country or were made such

by naturalization.” Id. (Emphasis added).

Senator Benjamin Franklin Wade of Ohio, himself a lawyer, was not satisfied. Like Howard, Wade

regarded birthright citizenship as “settled” both by

the Civil Rights Act of 1866 and by longstanding practice and understanding: “I have always believed that

every person, of whatever race of color, who was born

within the United States, was a citizen of the United

States,” Wade declared. Even so, he urged an amendment to Section 1 to make birthright citizenship clear

“beyond all cavil for the present and for the future.”

Cong. Globe, 39th Cong., 1st sess. pp.2768-69. Wade

foresaw the very assault the present Administration now

makes and urged the Committee to strengthen the

language of Section 1 to guard against such attacks.

Wade addressed directly the precise question now

before this Court: whether children born to foreign

parents traveling in this country temporarily were

American citizens, simply by being born on American

land. His exchange with fellow Committee Member

(and co-chair) Maine Senator William Pitt Fessenden

is especially telling. Fessenden asked, “Suppose a

person is born here of parents from abroad, temporarily

11

in this country.” Wade’s response was emphatic: “Most

assuredly they would be citizens of the United States

unless they went to another country and expatriated.”

Cong. Globe, 39th Cong., 1st sess. pp.2769. The only

exception to this rule were children of foreign ministers

because, by legal fiction, they reside “near” not “in” the

United States. Id.3

On May 30, Howard presented an amended Section

1 with the Citizenship Clause that was ultimately

adopted. Wade’s suggested language protecting birth

citizenship had been strengthened by the Republican

Caucus of the Committee in the week since Ben Wade

voiced his concerns. The revised Section 1 now included

an explicit declaration of birthright citizenship: “All

persons born in the United States, and subject to the

jurisdiction thereof, are citizens of the United States

and the States wherein they reside.” Cong. Globe, 39th

Cong., 1st sess. p.2890. No equivocations, ambiguities

or cloudy language.

Introducing the more robust Section 1, Howard

pronounced, “This amendment which I have offered is

simply declaratory of what I regard as the law of the

land already, that every person born within the limits

of the United States, and subject to their jurisdiction,

is by virtue of natural law and national law a citizen

of the United States.” His short simple explanation of

3 The sterile pages of the Congressional Globe do not reveal

whether this exchange was extemporaneous or staged to

emphasize the point that children born under the American flag

were to be citizens regardless of the intentions or condition of

their parents. Whether intended or not, Fessenden’s question

and Wade’s direct answer made the point clearly to everyone in

the Chamber.

12

a short simple Citizenship Clause left no doubt about

his meaning or the Clause’s reach.

Harkening back to the May 23 Wade – Fessenden

exchange, Howard explained that birthright citizenship

would not extend to children of foreign ambassadors,

but everyone else was included:

This will not, of course, include persons born

in the United States who are foreigners, aliens,

who belong to families of ambassadors or

foreign ministers accredited to the Government of the United States, but will include

every other class of persons. It settles the

great question of citizenship and removes all

doubt as to what persons are or are not

citizens of the United States. This has long

been a great desideratum in the jurisprudence

and legislation of this country.

Id.

Howard’s exception for children of diplomatic

families reflected Chief Justice Marshall’s holding in

The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch)

116 (1812). There, the Chief Justice recognized that to

participate in the international community every

sovereign nation was compelled to grant immunity to

diplomats from foreign countries. Immunity came

from a legal fiction that diplomats never actually left

their own jurisdictions when visiting a host country.

Schooner Exchange, 11 U.S. (7 Cranch) at 137-39.

Hence, they are not “subject to the jurisdiction” of the

host country while engaged in diplomatic endeavors.

The awkward attempt of some opponents of birth

citizenship to insert the preposition “[or]” after “aliens,”

which Howard did not say, only highlights what Howard

13

did in fact declare: that children born on American soil

are American citizens, except for children of accredited

foreign diplomats. Any other reading ignores Howard’s

plain reference to foreign diplomats who enjoyed diplomatic immunity. James C. Ho, Defining “American”

Birthright Citizenship and the Original Understanding

of the 14th Amendment, THE GREEN BAG, Summer

2006, Vol. 9, No. 4. 367, 372.

After he finished his introduction, Howard dismissed a suggestion from Wisconsin Senator James

R. Doolittle, who was well on the road to supporting

Andrew Johnson’s “restoration” policy. Doolittle

suggested that the citizenship clause be further amended

to exclude “Indians not taxed,” from those children

entitled to birth citizenship. Howard rejected the

suggestion: “Indians born within the limits of the

United States, and who maintain their tribal relations,

are not, in the sense of this amendment, born subject

to the jurisdiction of the United States.” Referring,

certainly, to Chief Justice Marshall’s decisions in

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)

and Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832),

Howard explained that Indians on tribal lands “are

regarded, and always have been regarded in our

legislation and jurisprudence, as being quasi foreign

nations.” Cong. Globe, 39th Cong., 1st sess. p.2890

(emphasis original). See, Gregory Ablavsky & Bethany

Berger, “Subject to the Jurisdiction Thereof”: The

Indian Law Context, NEW YORK UNIV. LAW REV., Vol.

100 (October 2025).

It was now clear that birthright citizenship under

Section 1 did not include children of foreign diplomats

or tribal Indians. Both were not “subject to the juris-

14

diction” of the United States.4 That left only children

of temporary sojourners, and offspring of unwanted or

unpopular foreigners to be debated – the very issue

Fessenden and Wade addressed on May 23.

III. The Cowan – Conness Debate

Pennsylvania Senator Edgar Cowan, an Andrew

Johnson supporter who had voted against the Civil

Rights Act, and who ultimately was one of 11 to vote

against the final draft of the 14th Amendment,

demanded to know whether there were any limits to

birth citizenship. Recognizing the close tie between

birthright citizenship and the Privileges or Immunities

Clause in Section 1, Cowan understood that if birthright

citizenship were granted to all children of alien

parents, they would be entitled to the Privileges or

Immunities of American citizens including the right

to buy real estate, travel, and live where they pleased.

That meant racial equality for more than just the

Freedmen, and it worried Cowan greatly.

Cowan aimed directly at California Republican

Senator John Conness and went right for the jugular:

“Is the child of the Chinese immigrant in California a

citizen? Is the child of a Gypsy born in Pennsylvania

citizen? If so, what rights do they have?” Cong. Globe,

39th Cong., 1st sess. p.2890.

Cowan laid out his understanding of Section 1 in

stark terms. If the children of yellow Chinese and

dark-skinned Gypsy immigrants were vested with full

American citizenship simply by being born in America,

4 Senator George Henry Williams of Oregon, also a member of

the Joint Committee, reiterated these points later on May 30.

Cong. Globe, 39th Cong., 1st Sess. p. 2897.

15

they would have the Privileges and Immunities that

accompanied citizenship – even though their parents

could not become citizens under the Act to Establish a

Uniform Rule of Naturalization (March 26, 1790) 1

Stat. 103 as amended by the Naturalization Law of

1802, ch. 28, § 1, 2 Stat. 153, 153–54. Naturalization

was limited to “free White persons.” Gypsies and

Chinese need not apply.

The Citizenship Clause when tied to the Privileges

or Immunities Clause that followed hard by, would

guarantee the hated Gypsies the right to buy and hold

property and many other rights that the Commonwealth

of Pennsylvania claimed the power to withhold from

this despised group. Cong. Globe, 39th Cong., 1st sess.

p.2890. Probably looking right at Conness, Cowan

warned the Senate that if Pennsylvania could not control

its Gypsies, California would have a bigger problem

with Chinese. Latching on to the rising tide of

xenophobia in California against Chinese immigrants,

Cowan assumed California would want the same protection against Chinese immigrants as Pennsylvania

claimed over the Romani.

Cowan asserted that “aliens and others who

acknowledge no allegiance, either to the State or to

the General Government, “may be limited and

circumscribed” in holding property and exercising other

rights – which, if Section 1 were adopted, would no

longer be the case. Id. He continued:

I have supposed . . . if [the State] were overrun

by another and a different race, it would

have the right to absolutely expel them. I do

not know that there is any danger to many of

the States in this Union; but is it proposed

that the people of California are to remain

16

quiescent while they are overrun by a flood

of immigration out of house and home by

Chinese?

Id. at 2891.

California and Pennsylvania would lose the right

exclude these races, Cowan recognized, if Section 1

were adopted. The children of these unwanted races

would be American citizens, vested with the Privileges

and Immunities of all Americans, including the right

to travel, buy property and maybe far more rights

than that. See James, Framing of the Fourteenth

Amendment p. 180 (“Statements of framers [of the

Fourteenth Amendment] indicate that these broad

terms, “privileges and immunities,” were to embrace

those guaranteed by the first eight amendments, and

other basic liberties recognized in the common law.”)

After condemning all Gypsies of his home state, “the

Zingara,” he called them, Cowan demanded:

Are these people, by constitutional amendment, to be put out of the reach of the State

in which they live? I mean as a class. If the

mere fact of being born in the country confers

that right, then they will have it; and I think

it will be mischievous.

Cong. Globe, 39th Cong., 1st sess. p.2891.

Cowan finished by baiting California Senator

Conness, who faced political challenges from Asian

immigrants similar to those Cowan feared from Central

European migrants of darker skin and different ways.

Granting citizenship to children of Gypsies or Chinese,

Cowan was sure, threatened the states, especially

California:

17

There is a race in contact with this country

which, in all characteristics except that of

simply making fierce war, is not only our

equal but perhaps our superior. I mean the

yellow race: The Mongol race. They outnumber

us largely. Of their industry, their skill, and

their pertinacity in all worldly affairs, nobody

can doubt. . . . They may pour in the millions

upon our Pacific coast in a very short time.

Are the States to lose control over this immigration? Is the United States to determine that

they are to be citizens?

Id.

Cowan answered his own question:

If I desire the exercise of my rights I ought to

go to my own people, the people of my own

blood and lineage, people of the same religion,

people of the same beliefs and traditions, and

not thrust myself in upon a society of other

men entirely different from myself. Therefore,

I think before we assert broadly that everybody

who shall be born in the United States shall

be taken to be a citizen of the United States,

we ought to exclude others besides Indians

not taxed, because I look upon Indians not

taxed as being much less dangerous and

much less pestiferous to society than I look

upon Gypsies.

Id.

Cowan closed with a not-so-thinly veiled political

threat to Conness: “I do not know how my honorable

friend from California looks upon Chinese, but I do

know how some of his fellow citizens regard them.” Id.

18

Conness rose to the challenge. He had immigrated

from Galway with his large family in 1833, residing in

New York until the Gold Rush drew him to California

in 1849. He knew first-hand the face of bigotry and

relished a fight. Conness went right to the point:

[The Citizenship Clause] relates simply in

that respect to the children begotten of

Chinese parents in California, and it is

proposed to declare that they shall be

citizens. We have declared that by law (in the

Civil Rights Act of 1866); now it is proposed

to incorporate the same provision in the fundamental instrument of the nation. I am in

favor of doing so. I voted for the proposition

to declare that the children of all parentage

whatever, born in California, should be

regarded and treated as citizens of the United

States, entitled to equal civil rights with other

citizens of the United States.

Id. (Emphasis added).

In these four sentences, Conness summed up the

plain meaning and impact of the Citizenship Clause.

Children born in America were Americans. Period.

Parentage did not matter. Class did not matter. Race

did not matter. Religion did not matter. Allegiance was

not mentioned. Consent was not required. But equality

did matter, and that was what Section 1 was all about.

Conness explained to the Senate how Chinese

people had been abused in California since the Gold

Rush. Their property had been stolen routinely, and

they had been beaten and killed with no help from the

State. Instead of protection, the state legislature saddled

them with more burdens. California had levied taxes

19

on them, only, based on their race like poll taxes

and miners’ taxes, and tried to prohibit Chinese

immigration. Cong. Globe, 39th Cong., 1st sess. p.2891.

Recounting the history of People v. Hall, 4 Cal. 399

(1854), Conness reminded the Senate that White

“road agents” from States later to join the rebellion

had murdered peaceful Chinese on the highways of

California in broad daylight with impunity because the

only witnesses to the crimes were Chinese who were

not allowed, to testify in court under California law.

Cong. Globe, 39th Cong., 1st sess. p.2892. Section 1

would end that abuse because the right to testify in

court was one of the recognized Privileges and

Immunities of American citizenship.

Perhaps with tongue in cheek, Conness dismissed

Cowan’s fear of an “invasion” of Gypsies or Chinese as

unfounded. “The only invasion of Pennsylvania within

my recollection was an invasion very much worse and

more disastrous to the State. And more to be feared

than that of Gypsies. It was an invasion of rebels

which this amendment, if I understand it aright, is

intended to guard against and to prevent the recurrence

of.” Id.

Hinting at his own immigrant experience, and

foreshadowing dark strategies echoing well in the future,

Conness wondered whether Cowan and other opponents

of birthright citizenship were simply using xenophobia

for political gain. “Why all this talk of Gypsies and

Chinese?” Conness wondered. “I have lived in the United

States for now many a year, and really I have heard

more about Gypsies within the last two or three months

than I have heard before in my life. . . . It must be that

the Gypsy element is to be added to our political

agitation . . . ” Id.

20

Summing up, Conness reiterated his understanding of the meaning and application of the Citizenship

Clause and embraced it. “We are entirely ready to

accept the provision proposed in this constitutional

amendment, that the children born here of Mongolian

parents shall be declared by the Constitution of the

United States to be entitled to civil rights and equal

protection before the law with others. Id.

The exchange between Conness and Cowan is

revealing. Cowan opposed the Citizenship Clause

because, as he explained, it would give birthright

citizenship to children of any people, even unwanted

and despised immigrants, whose children might one

day own property and even get involved in the government if this clause were adopted. Conness reassured

the Senate that Cowan’s fears were unfounded; the

descendants of Chinese or Gypsies, as hated as they

were, presented no threat to the country.

While they disagreed sharply on the policy of the

Citizenship Clause, Cowan and Conness agreed wholeheartedly on its meaning. The proposed Citizenship

Clause was, in Conness’s words, “a simple declaration”

that “human beings born in the United States shall be

regarded as citizens of the United States, entitled to

civil rights, to the right of equal defense, to the right

of equal punishment for crime with other citizens.” Id.

(Emphasis added). History “confirms that the Citizenship Clause applies to children of aliens.” Ho, supra,

Defining America, p. 373.

That the first federal law creating the concept of

“illegal aliens” was not enacted until the Chinese

Exclusion Act of 1882, 8 U.S.C. §§ 262 et. seq., does not

help the Government’s argument one iota. The

Citizenship Clause speaks to the child’s birth location,

21

not the legality of the mother’s presence on American

soil. As Cowan’s snide remarks make clear, the

framers were very aware of unwanted immigrants and

specifically addressed the citizenship of their children

– whether or not the parents were wanted on American soil. Nor does it make sense that Congress could

undermine the Constitutional provision of birthright

citizenship by a mere statute making some parent’s

existence in America a criminal violation.

There were in fact human beings on American land

illegally in 1866. When President Thomas Jefferson

signed An Act Prohibiting the Importation of Slaves,

ch.22, 2 Stat. 426 (1807) the Transatlantic slave

trade did not cease – it went underground. Testimony

indicates that perhaps 15,000 enslaved people each

year were smuggled into America illegally between the

1808 Act and 1860. William Jay, A View of the Action

of the Federal Government, In Behalf of Slavery.

(https://catalog.hathitrust.org/Record/009583255.

During the debates on the 14th Amendment, no one

suggested that the children of these formerly enslaved

people could not be citizens even though their parents

were in America illegally.

IV. Conness and the Electorate

After the proposed 14th Amendment complete with

the Citizenship Clause in Section 1 passed both houses

by the required 2/3rds majorities, supporters gave

speeches across the country urging adoption. Section

1 was discussed by proponents such as future Presidents James Garfield, and Rutherford B. Hayes, and

the powerful Carl Schurz, who explained that that

Section 1 granted all persons born in the United States

citizenship and clothed them with the privileges and

immunities guaranteed by the constitution and com-

22

mon law. James, FRAMING THE FOURTEENTH AMENDMENT, pp. 162-163. The people and the legislatures

knew what the vote was about.

Senator Conness knew, too, that his support for

the Citizenship Clause and for legal equality for the

children of Chinese immigrant parents would get back

to California, just as Cowan had predicted. He was

not afraid. Conness was willing to risk his Senate seat

for supporting birthright citizenship and equality.

Responding to Cowan’s threat, Conness declared, “I

am quite aware that what I shall say will go to

California, and I wish it to do so. Cong. Globe, 39th

Cong., 1st sess. p.2892.

Conness understood and accepted the political

risk. Virulent anti-Chinese sentiment had been growing

at least since Governor John Bigler’s Message on

Chinese Immigration in 1852 when he sought severe

restrictions on Chinese “coolies” immigrating to

California. Letter of Daniel Cleveland, Esq. to Hon. J.

Ross Browne, U.S. Minister to China, July 27, 1868,

p.5. Fear and hatred of Chinese immigrants was

rampant in California and growing. In 1856, Reverand

William Speer, who was ministering to the Chinese

immigrants in the state, published “An Humble Plea

to the Legislature of California on behalf of the

Immigrants From the Empire of China” requesting

legislation to protect Chinese immigrants from extortion,

theft and lynching. By 1866, the situation had become

more ominous for the Chinese immigrants and their

supporters. See, William Speer, D.D. THE OLDEST AND

NEWEST EMPIRE: CHINA AND THE UNITED STATES, S.S.

Scranton & Co. (1870) Ch. XX (detailing the rapid rise

of nativist crime against Chinese immigrants in the

1850s and 1860s).

23

Conness’s political base, the Union Party, split

over the 14th Amendment, with the Union Democrats

rejoining their former party in 1867 to oppose the

Amendment. Conness was not even nominated for

reelection. He was forced out of the Senate when his

term ended in 1869, replaced by Democrat Eugene

Casserly. John Denning, A Fragile Machine: California

Senator John Conness, California History, Vol. 85, No. 4

(2008) p. 49. Conness had sacrificed his political career

for something he held more dear: human equality

guaranteed in America’s fundamental law.

California became the only pre-Civil War free

state to reject the 14th Amendment, driven by fear of

Chinese immigration and citizenship guaranteed by

the express words of Section 1. Kevin Waite, Op. Ed.,

Early California lawmakers also preached resistancebut against immigration, LOS ANGELES TIMES, August

3, 2018. California did not in fact ratify the amendment

until 1959. AJR 32, adopted May 6, 1959.

CONCLUSION

Both the framers and the ratifiers understood

and accepted the plain meaning of the Citizenship

Clause. Howard had explained that citizenship as

defined in Section 1 was an integral part of the

Privileges or Immunities Clause which follows

immediately thereafter. All persons born in America

are vested with the privileges and immunities of

American citizens by virtue of their birth on American

soil, with only a few, well defined exceptions. Immigrant

24

status is not one of the exceptions to birthright

citizenship and was never meant to be one of them.

The drafters knew and intended to include birthright citizenship in the country’s fundamental law as

demonstrated by Senator Wade’s May 23 comments

and Jacob Howard’s introductory remarks in the

Senate the following week. The people understood the

significance of the Clause, and of Section 1 in its

entirety as shown by their reaction, pro and con, at

the polling place in 1867 and in ratification votes in

the legislatures across the country. The debate between

Senators Cowan and Conness was a microcosm of the

debate nation-wide and proves that legislators on both

sides of the issue, while disagreeing on its wisdom,

accepted its meaning. Faithful Originalism and Textualism compel the conclusion that the Citizenship

Clause means what it says.

“Constitutional analysis must begin with the language of the instrument.” Dobbs v. Jackson Women’s

Health Organization, 597, U.S. 215, 234 (2024), quoting

Gibbons v. Ogden, 9 Wheat. 1, 186-189 (1824). The language of Section 1 is clear. Birth under the flag confers

citizenship and this has been accepted by every court

to address the issue for more than a century. Article V

provides a process for altering that policy for those who

seek a different means of defining American citizenship.

The text of the Citizenship Clause is clear and

unambiguous. It guarantees citizenship to all people

born on American soil and subject to the country’s

laws. Citizenship is not dependent, limited or restricted

by the child’s parents, nor does citizenship depend on

the blessing of any politician. EO 14160 violates the

text, structure and expressed purpose of both the

Citizenship Clause of the 14th Amendment, Section 1,

25

and 8 U.S.C. § 1401(a), the statute adopted to implement

the Constitutional mandate. The District Court’s

Opinion and Ruling should be affirmed.

Respectfully submitted,

Christopher A. Duggan

Counsel of Record

SMITH DUGGAN CORNELL & GOLLUB LLP

55 Old Bedford Road

Lincoln, MA 01773

(617) 228-4444

chris.duggan@smithduggan.com

Frank J. Bailey

President

PIONEER NEW ENGLAND LEGAL FOUNDATION

185 Devonshire Street

Suite 1101

Boston, MA 02110

617 877 9511

frank.bailey@pioneerlegal.org

Counsel for Amici Curiae

February 26, 2026