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

Supreme Court briefFeb 26, 2026

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No. 25-365

IN THE

DONALD J. TRUMP,

President of the United States, et al.,

Petitioners,

BARBARA et al.,

Respondents.

On Writ of Certiorari Before Judgment to the

United States Court of Appeals for the First Circuit

BRIEF OF ORIGINALIST SCHOLARS EVAN D.

BERNICK AND JED H. SHUGERMAN AS

AMICI CURIAE SUPPORTING RESPONDENTS

Brendan Benedict

Counsel of Record

Michael D. Altebrando

BENEDICT LAW GROUP PLLC

322 G Street NE

Washington, DC 20002

(212) 287-9501

brendan@

benedictlawgroup.com

Counsel for Amici Curiae

TABLE OF CONTENTS

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

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

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

ARGUMENT ................................................................ 4

Public meaning originalism offers methods for

weighing textual evidence. .................................... 4

A. Public meaning, not private intent ................ 4

B. Contemporaneous meaning, not post hoc

meaning .......................................................... 6

II. The ordinary meaning of “jurisdiction” was

governance by sovereign legal authority. ............. 8

III. Preratification evidence supports citizenship

for the children of transient and even criminal

aliens. ............................................................... 10

A. The relevant common-law tradition ............ 10

B. Early American practice .............................. 16

IV. The drafting and ratification debates

recognized citizenship for children of transient

aliens and those unlawfully present................... 26

A. The Civil Rights Act of 1866 ........................ 26

B. The

debates

cited

salient

antiimmigration laws and transient aliens. ...... 27

C. The Government cherry-picks ..................... 29

V. The letter and spirit of citizenship mutually

reinforce the public meaning. ............................. 30

CONCLUSION .......................................................... 32

TABLE OF AUTHORITIES

Cases

Calvin v. Smith (Calvin’s Case),

77 Eng. Rep. 377, 7 Co. Rep. 1a (K.B. 1608) .. 10, 11,

12-15, 18, 20, 21

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................ 4, 6, 30

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ............................................ 2, 10

Dred Scott v. Sandford,

60 U.S. (19 How.) 393 (1857) ................................... 3

Exxon Mobil Corp. v. Allapattah Servs.,

545 U.S. 546 (2005) ................................................ 29

Gardner v. Ward,

2 Mass. 236 n.a (1805) ........................................... 20

Inglis v. Trs. of Sailor’s Snug Harbor,

28 U.S. (3 Pet.) 99 (1830) ....................................... 21

Kahler v. Kansas,

589 U.S. 271 (2020) ................................................ 10

Kilham v. Ward,

2 Mass. 236 (1806) ........................................... 20, 21

Lynch v. Clarke,

1 Sand. Ch. 583 (N.Y. Ch. 1844) ... 18, 21, 22, 24, 26,

Lyndon v. Danville,

28 Vt. 809 (1856) .................................................... 26

Martin v. Brown,

7 N.J.L. 305 (N.J. 1799) ......................................... 18

Murray v. Schooner Charming Betsy,

6 U.S. (2 Cranch) 64 (1804).................................... 19

iii

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ................................................ 6, 15

Op. of the Justices of Supreme Judicial Court,

44 Me. 505, 1857 Me. LEXIS 151 (1857) ............... 24

Plessy v. Ferguson,

163 U.S. 537 (1896) .................................................. 8

Ramos v. Louisiana,

590 U.S. 83 (2020) .................................................... 4

Schooner Exch. v. McFaddon,

11 U.S. (7 Cranch) 116 (1812)................................ 19

Shirley’s Case,

2 Dy. 144a (Q.B. 1557) ........................................... 11

State v. Manuel,

20 N.C. 144 (1838) .................................................. 23

Story’s Case,

2 Dy. 300b (Q.B. 1571) ........................................... 11

United States v. O’Brien,

391 U.S. 367 (1968) .................................................. 4

United States v. Rahimi,

602 U.S. 680 (2024) .................................................. 6

United States v. Rhodes,

27 F. Cas. 785 (C.C.D. Ky. 1866) ........................... 25

United States v. Vaello-Madero,

596 U.S. 159 (2022) .................................................. 9

United States v. Wong Kim Ark,

169 U.S. 649 (1898) ............................................ 7, 10

Vidal v. Elster,

602 U.S. 286 (2024) .................................................. 7

Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ.,

550 U.S. 81 (2007) .................................................... 4

Statutes

An Act to Establish an Uniform Rule of

Naturalization,

1 Stat. 103 (1790) (repealed 1795) ......................... 18

An Act to Prohibit the Importation of Slaves,

2 Stat. 426, § 1 (1807) ............................................ 31

Civil Rights Act of 1866,

ch. 31, 14 Stat. 27 (1866), codified as amended

at 42 U.S.C. §§ 1981-1982 ...................................... 26

Constitutional Provisions

Amend. XIV, § 1 ..................................................... 8, 27

Art. I, §§ 2-3 ............................................................... 18

Art. II, § 1 ................................................................... 18

Art. III, § 2 ................................................................. 18

Art. IV, § 2 .................................................................. 18

Treatises

1 William Blackstone, Commentaries (1765) ............ 14

4 William Blackstone, Commentaries (1769) ............ 15

2 James Dyer, Reports of Cases in the Reigns of

Hen. VIII, Edw. VI, Q. Mary & Q. Eliz. (John

Vaillant ed. 1794) ................................................... 11

1 Matthew Hale, The History of the Pleas of the

Crown (1736) .......................................................... 15

2 James Kent, Commentaries (6th ed. 1848). ..... 16, 23

William Rawle, A View of the Constitution of the

United States of America (2d ed. 1829) ................. 23

Joseph Story, Commentaries on the Conflict of

Laws, Foreign and Domestic (1834) ...................... 21

1 Zephaniah Swift, A System of the Laws of the

State of Connecticut (1795) .................................... 23

Books, Articles, and Reports

Randy E. Barnett & Evan D. Bernick, The

Original Meaning of the Fourteenth

Amendment: Its Letter and Spirit (Harvard

2021) ..................................................................... 1, 6

Randy E. Barnett & Lawrence B. Solum,

Originalism After Dobbs, Bruen, and

Kennedy: The Role of History and Tradition,

118 Nw. U. L. Rev. 433 (2023) ................................. 4

Evan D. Bernick, Antisubjugation and the Equal

Protection of the Laws, 110 Geo. L.J. 1 (2021) ...... 12

Evan D. Bernick, Paul Gowder & Anthony

Michael Kreis, Birthright Citizenship and the

Dunning School of Unoriginal Meanings, 101

Cornell L. Rev. Online 101 (2025) ..................... 1, 22

Horace Binney, The Alienigenae of the United

States under the Present Naturalization Laws

(2d ed. 1853) ........................................................... 24

Henry Campbell Black, Handbook of American

Constitutional Law (1895) ....................................... 7

1 John Bouvier, A Law Dictionary (11th ed.

1862) ......................................................................... 8

Alexander M. Burrill, A Law Dictionary and

Glossary (2d ed. 1860) .............................................. 9

Gabriel J. Chin & Paul Finkelman, Birthright

Citizenship, Slave Trade Legislation, and the

Origins of Federal Immigration Regulation, 54

U.C. Davis L. Rev. 2215 (2021).............................. 31

6 Reports from the Notebooks of Edward Coke

(John Baker ed. 2025) ............................................ 12

2 A Complete Collection of State Trials (Thomas

Bayly Howell ed. 1816) .......................................... 13

Timothy Cunningham, A New and Complete

Law Dictionary (2d ed. 1771) ................................. 14

Sam Erman & Nathan Perl-Rosenthal, Jus Soli

Nation to Jus Soli Evasion: International

Lawyers for White Supremacy and the Road

through Wong Kim Ark, 3 J. Am. Const. Hist.

615 (2025) ................................................................. 8

J. David Hacker, From ‘20. and odd’ to 10

million: The Growth of the Slave Population in

the United States, 41 Slavery & Abolition 840

(2020) ...................................................................... 31

9 W.S. Holdsworth, A History of English Law

(1926) ...................................................................... 10

Benjamin Keener, Essay, Calvin’s Case and

Birthright Citizenship, 174 U. Pa. L. Rev.

Online 17 (Nov. 14, 2025) ................................ 11, 14

Thomas H. Lee, The Safe-Conduct Theory of the

Alien Tort Statute 106 Colum. L. Rev. 830

(2006) ...................................................................... 16

Charles J. McClain, Chinese Immigrants in the

California Supreme Court: The Earliest Civil

Cases, 19 Cal. L. Hist. 73 (2024)............................ 27

Samuel F. Miller, Lectures on the Constitution of

the United States (1891) ........................................... 7

Polly J. Price, Natural Law and Birthright

Citizenship in Calvin’s Case (1608), 9 Yale

L.J. & Humans. 73 (1997) ...................................... 12

Michael D. Ramsey, The Original Meaning of

“Natural Born”, 20 U. Pa. J. Const’l L. 199

(2017) ...................................................................... 18

vii

Michael D. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L.J. 405 (2020)…………….16, 27, 29

Hon. Antonin Scalia, Address Before the

Attorney General’s Conference on Economic

Liberties (June 14, 1986), in Original

Meaning Jurisprudence: A Sourcebook (U.S.

Dep’t of Justice ed. 1987) ......................................... 4

Mark Shawhan, “By Virtue of Being Born Here”:

Birthright Citizenship and the Civil Rights

Act of 1866, 15 Harv. Latino L. Rev. 201

(2012) ........................................................................ 5

Mark Shawhan, Comment, The Significance of

Domicile in Lyman Trumbull’s Conception of

Citizenship, 119 Yale L.J. 1351 (2010) .................... 5

Jed H. Shugerman, An Originalist Case for

Birthright Citizenship: The Inclusion of

“Temporary Sojourners” and of Chinese and

Roma, 77 UC L. J. (forthcoming) (Feb. 2,

2026),

https://papers.ssrn.com/sol3/papers.cfm?abstr

act_id=5278199. ........................................... 2, 27, 29

Jed H. Shugerman, The People’s Courts:

Pursuing Judicial Independence in America

(2012) ........................................................................ 1

Sen. Charles Sumner, Equality Before the Law

(1849), reprinted in 3 Charles Sumner: His

Complete Works (1900)........................................... 24

Noah Webster, A Dictionary of the English

Language (1865) ................................................... 8, 9

J.J.S. Wharton, Law Lexicon, or Dictionary of

Jurisprudence (Edward Hopper ed., 2d Am.

ed. 1860) ............................................................... 8, 9

viii

Boyd Winchester, Citizenship in Its

International Relation, 31 Am. L. Rev. 504

(1897) ........................................................................ 7

William Yates, Rights of Colored Men to

Suffrage, Citizenship and Trial by Jury

(Philadelphia: Merrihew & Gunn 1838)................ 31

Other Authorities

1 Annals of Congress (1st Sess. 1789) (Joseph

Gales ed., 1834) ...................................................... 19

5 Journals of the Continental Congress (Gaillard

Hunt ed. 1912) ........................................................ 17

21 Journals of the Continental Congress, 17741789 (Gaillard Hunt ed. 1912). .............................. 16

9 Op. Att’y Gen. 373 (July 18, 1859) ......................... 24

Citizenship of Children Born in the United

States of Alien Parents, 10 Op. Att’y Gen. 328

(Sept. 1, 1862) ......................................................... 25

Cong. Globe, 39th Cong., 1st Sess. (1866) .... 27, 28, 29,

Andrew Johnson, Veto Message on Civil Rights

Legislation (Mar. 27, 1866), available at:

https://bit.ly/4dPdnOa .............................................. 5

Hannes Kleineke, Unrest in the West: The

Perkin Warbeck Conspiracy, History of

Parliament Blog! (Nov. 23, 2024), available at:

https://shorturl.at/HsGj8 ....................................... 14

William L. Marcy, Native Sons of Alien Parents,

N.Y. Times 3 (Mar. 20, 1854), available at:

https://www.nytimes.com/1854/03/20/archives/

native-sons-of-alien-parents.html ......................... 25

Naturalized Citizens and the Draft, N.Y. Times

8 (Aug. 10, 1862), available at

https://timesmachine.nytimes.com/timesmachi

ne/1862/08/10/78990736.html?pageNumber=8 ..... 26

New York Court of Chancery, 1683-1846, Hist.

Soc’y of the N.Y. Courts,

https://history.nycourts.gov/court/courtchancery/ (last accessed Feb. 26, 2026) .................. 22

Resolutions of the Continental Congress (Oct. 19,

1765), available at: https://shorturl.at/lSCZx ....... 17

Ilya Somin, Compendium of Evan Bernick

Guest-blogging Posts on Birthright

Citizenship, The Volokh Conspiracy, Reason

(Apr. 5, 2025), https://shorturl.at/Gutf2 .................. 1

INTEREST OF THE AMICI CURIAE1

Amici are scholars of constitutional law who interpret Constitutional provisions according to their original public meaning. They have written on the Reconstruction Era generally and the birthright citizenship

question specifically.

Evan D. Bernick is an Associate Professor of Law

at Northern Illinois University College of Law. He has

co-authored a book on the originalist interpretation of

the Fourteenth Amendment, closely studying the ratification debates. See Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (Harvard 2021). He has also

written on birthright citizenship in both academic and

popular publications. See, e.g., Evan D. Bernick,

Paul Gowder & Anthony Michael Kreis, Birthright

Citizenship and the Dunning School of Unoriginal

Meanings, 101 Cornell L. Rev. Online 101 (2025); Ilya

Somin, Compendium of Evan Bernick Guest-blogging

Posts on Birthright Citizenship, The Volokh Conspiracy, Reason (Apr. 5, 2025), https://shorturl.at/Gutf2.

Jed Handelsman Shugerman is Professor of

Law and Harry Elwood Warren Scholar at Boston University. His expertise on the Reconstruction era is

demonstrated in his book The People’s Courts: Pursuing Judicial Independence in America (Harvard 2012)

and his article The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil

Service Authors, 66 Stan. L. Rev. 121 (2014). This brief

1 No counsel for a party authored this brief in any part, and

no person or entity besides amici or their counsel made any

monetary contribution to fund the brief’s preparation or

submission.

incorporates his findings from An Originalist Case for

Birthright Citizenship: The Inclusion of “Temporary

Sojourners” and of Chinese and Roma, 77 UC L. J.

(forthcoming)

(Feb. 2,

2026),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5278199.

SUMMARY OF ARGUMENT

For nearly all of the first 235 years under the Constitution, the citizenship of every child born in the

United States to alien parents, with immaterial exceptions, was a given. Then, in 2025, the Trump administration changed course. Even though the Fourteenth

Amendment makes no mention of limiting birthright

citizenship to the children of domiciled parents, the

Government now claims that is what “subject to the

jurisdiction thereof” has always meant. While the Government and its amici admit that the common law recognized the citizenship of children of transient aliens,

their remaining “survey of history range[s] from the

constitutionally irrelevant” (e.g., safe-conducts in medieval England and the law of nations in the 1890s) “to

the plainly incorrect” (e.g., a rule that would have

treated the children of freed slaves as aliens). Dobbs v.

Jackson Women’s Health Org., 597 U.S. 215, 226

(2022). Their approach is not originalist, and their conclusion is not correct.

First, two originalist principles of interpretation

are essential to weighing the evidence: that the Citizenship Clause has the same meaning it had at adoption, and that the ordinary meaning communicated to

the ratifying public by its words—not the private intent of drafters—controls. The Government’s post-ratification evidence, beginning 15 years after the drafting of the Fourteenth Amendment, cannot amend its

original text. Nor can a private letter change its public

meaning.

Second, applying those principles, the balance of

evidence is clear. The ordinary meaning of “jurisdiction” at ratification was the power to govern. Because

transient and unlawful aliens present here are governed by the United States, they are “subject to the

jurisdiction” of the United States, and their children

born here are citizens as a result.

Third, preratification evidence supports that

meaning. The Constitution’s use of “citizen” tracked in

relevant part the common-law meaning of “subject.”

Even a child born in England to an alien owing “momentary and fleeting” allegiance while traveling

through England to commit treason was a subject.

Congress and early American courts continued to apply that logic, and the leading antebellum case held

that children of transient aliens are citizens.

Fourth, the debates on the Civil Rights Act of 1866

and the Fourteenth Amendment offer little support for

the Government’s reading. To the contrary, members

of Congress asked if the children of “temporary sojourners,” the Roma people (pejoratively called “Gypsies” at the time), and Chinese immigrants (whose status implicated the category of “illegal” immigration)

would be citizens—and for each, the answer was yes.

Last, the Government’s logic would have made aliens out of the children of slaves, many of whom entered “unlawfully” by virtue of being trafficked here

after a federal ban. And it would resurrect the allegiance-without-protection rationale of Dred Scott v.

Sandford, 60 U.S. (19 How.) 393 (1857), which the

Fourteenth Amendment forever repudiated. That cannot be correct. The Court should affirm.

ARGUMENT

Public meaning originalism offers methods for weighing textual evidence.

The predominant method of originalist Constitutional interpretation is public meaning originalism.

See, e.g., Randy E. Barnett & Lawrence B. Solum,

Originalism After Dobbs, Bruen, and Kennedy: The

Role of History and Tradition, 118 Nw. U. L. Rev. 433,

436 (2023). Two of its interpretative principles provide

a roadmap for weighing textual evidence of the Citizenship Clause’s meaning.

Public meaning, not private intent

First, public meaning originalism seeks “the most

plausible meaning of the words of the Constitution to

the society that adopted it”. Hon. Antonin Scalia, Address Before the Attorney General’s Conference on

Economic Liberties (June 14, 1986), in Original Meaning Jurisprudence: A Sourcebook 103 (U.S. Dep’t of

Justice ed. 1987). The public meaning “excludes secret

or technical meanings that would not have been

known to ordinary citizens”. District of Columbia v.

Heller, 554 U.S. 570, 577 (2008).

Private letters or notes flunk that test twice. See

Ramos v. Louisiana, 590 U.S. 83, 98 & n.40 (2020) (discounting private correspondence from James Madison). They speak to the state of mind of one person, not

a legislating majority. Cf. United States v. O’Brien, 391

U.S. 367, 384 (1968) (“What motivates one legislator

to make a speech about a statute is not necessarily

what motivates scores of others to enact it”.). And they

cannot give fair notice. See Zuni Pub. Sch. Dist. No. 89

v. Dep’t of Educ., 550 U.S. 81, 119 (2007) (Scalia, J.,

dissenting) (“Citizens arrange their affairs not on the

basis of their legislators’ unexpressed intent, but on

the basis of the law as it is written and promulgated.”).

That’s all before the authenticity problems that arise

from an interpretive method that would incentivize

“discovering” scraps of paper with talismanic power to

change the Constitution’s meaning.

But that is what the Government does here by relying on (at 24) a letter from Senator Lyman Trumbull

to President Andrew Johnson about the meaning of

the Civil Rights Act of 1866 (“1866 Act”), the precursor

to the Fourteenth Amendment. The letter apparently

was forgotten by legal scholars for 144 years until a

law student unearthed it and attributed it to Trumbull. See Mark Shawhan, Comment, The Significance

of Domicile in Lyman Trumbull’s Conception of Citizenship, 119 Yale L.J. 1351, 1353 n.9 (2010). Trumbull

reportedly writes that the 1866 Act “declares ‘all persons’ born of parents domiciled in the United States,

except untaxed Indians, to be citizens of the

United States.” Id. at 1352-53 (quotation omitted).

Reading a parental domicile requirement into the

Fourteenth Amendment from this letter abandons

originalism in several ways. To start with, a domicile

requirement “seems not to have been expressed [by

Trumbull] publicly in debate over the Act, nor shared

by other members of Congress”, as the law student

who found the letter later admitted. Mark Shawhan,

“By Virtue of Being Born Here”: Birthright Citizenship

and the Civil Rights Act of 1866, 15 Harv. Latino L.

Rev. 201, 219-220 n.123 (2012). Maybe Trumbull

downplayed the Act’s scope because he feared Johnson

would veto it, which then happened. See Andrew Johnson, Veto Message on Civil Rights Legislation (Mar. 27,

1866), available at: https://bit.ly/4dPdnOa (“This provision comprehends the Chinese . . . the people called

gypsies, as well as the entire race designated as

blacks. . . . Every individual of these races born in the

United States is by the bill made a citizen of the

United States.”). Congress overrode that veto despite

those objections. See Barnett & Bernick, supra, at 124.

Rather than attempting to read runes or minds,

originalists start by reading the operative text.

Contemporaneous meaning, not post

hoc meaning

Second, the Constitution’s words mean today what

“they were understood to [mean] when the people

adopted them”. Heller, 554 U.S. at 634-35. As a consequence, “when it comes to interpreting the Constitution, not all history is created equal.” N.Y. State Rifle

& Pistol Ass’n v. Bruen, 597 U.S. 1, 34 (2022). “[F]or

an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law.”

United States v. Rahimi, 602 U.S. 680, 737-38 (2024)

(Barrett, J., concurring). Generally, the closer in time

the evidence of meaning is to ratification, the more

weight the evidence deserves.

Two notes of caution are in order. First, it’s not ancient or obsolete history that counts before ratification.

A “long, unbroken line of common-law precedent

stretching from Bracton to Blackstone is far more

likely to be part of our law than a short-lived, 14thcentury English practice.” Bruen, 597 U.S. at 35. Second, the Court should “guard against giving postenactment history more weight than it can rightly bear.” Id.

And “to the extent later history contradicts what the

text says, the text controls.” Id. at 36. Only when “the

text is vague and the pre-ratification history is elusive

or inconclusive” does post-ratification evidence become

“especially important.” Rahimi, 602 U.S. at 723 (Kavanaugh, J., concurring). As shown below, the text is

clear and the relevant pre-ratification history stacks

conclusively against the Government’s view.

Faithful originalists would reject the Government’s

argument “that the late-19th and early-20th century

. . . tradition serves as evidence of the original meaning of the” Citizenship Clause. Vidal v. Elster, 602 U.S.

286, 323 (2024) (Barrett, J., concurring). The Government’s sources of executive practice and commentary

(at 25-28, 31) start in 1881—15 years after the debates

on the 1866 Act and Fourteenth Amendment. Ironically, the Government invokes (at 43) the rule against

anachronistic textual meaning as a reason to discount

the executive practice and commentary of the past century. But it can’t have it both ways.

The post-ratification sources from the Government’s bullet-pointed list (at 26-28) do not persuade.

Some appear in Justice Fuller’s dissent in

United States v. Wong Kim Ark, 169 U.S. 649, 718,

719, 722, 727, 731 (1898) (citing Wharton, Miller, and

Hall). Some explain that a child born to transient aliens would not be a citizen if the child imminently left

the country. But that can be understood as a rule of

expatriation, not of birthright citizenship. See Samuel

F. Miller, Lectures on the Constitution of the United

States 279 (1891) (child “which goes out of the country

with its father” is not a citizen); Henry Campbell

Black, Handbook of American Constitutional Law 458459 (1895) (similar); Boyd Winchester, Citizenship in

Its International Relation, 31 Am. L. Rev. 504, 504

(1897) (similar).

The Government gives another bullet point (at 26)

to Alexander Porter Morse, whose work on citizenship

was part of “overlapping white-superiority projects,”

another of which was defending segregation in Plessy

v. Ferguson, 163 U.S. 537 (1896). See Sam Erman &

Nathan Perl-Rosenthal, Jus Soli Nation to Jus Soli

Evasion: International Lawyers for White Supremacy

and the Road through Wong Kim Ark, 3 J. Am. Const.

Hist. 615, 619, 635 (2025). Rather than look for what

the Citizenship Clause meant to white supremacists

in the 1880s, the Court should start with the common

meaning of the words at ratification.

II.

The ordinary meaning of “jurisdiction”

was governance by sovereign legal authority.

The Fourteenth Amendment’s Citizenship Clause

provides: “All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States”. It does not say that

only persons born in the United States to domiciled

parents are citizens.

The common meaning of “subject to the jurisdiction

thereof” in 1868 was simply that a person could be governed directly by the sovereign’s laws. See Noah Webster, A Dictionary of the English Language 732 (1865)

(defining “jurisdiction” as the “[p]ower of governing or

legislating; the right of making or enforcing laws; the

power or right of exercising authority”); J.J.S. Wharton, Law Lexicon, or Dictionary of Jurisprudence 408

(Edward Hopper ed., 2d Am. ed. 1860) (defining “jurisdiction” as “legal authority; extent of power”), cited at

Pet. Br. 29. As with courts, jurisdiction was closely

linked to territory. See 1 John Bouvier, A Law Dictionary 683 (11th ed. 1862) (defining jurisdiction as a

judge’s power to hear cases within his “tract of land or

district”).

“Citizen,” too, had an ordinary meaning at the

time: generally, one became a citizen by birth within

territory governed by the sovereign or by naturalization, without parental qualifiers. See Webster, supra,

at 234 (providing a U.S.-specific definition of “citizen”

as “any native born or naturalized person . . . who is

entitled to full protection” of private rights); Bouvier,

supra, at 231 (defining “citizen” to include “all white

persons born in the United States”); Alexander M.

Burrill, A Law Dictionary and Glossary 293 (2d ed.

1860) (similar). The Citizenship Clause expanded the

common meaning of “citizen” by ending race-based citizenship: it “forever closed the door on Dred Scott”.

United States v. Vaello-Madero, 596 U.S. 159, 174-75

(2022) (Thomas, J., concurring) (cleaned up). But it

didn’t contract the meaning with new exceptions to

birthright citizenship.

The Government’s only period dictionary (at 29)

ties allegiance to birth within the sovereign’s authority in the next sentence that the Government omits,

defining “allegiance” to mean “either natural . . .

where one is a subject born, or has been naturalized,

or local and temporary, during a residence”. Wharton,

supra, at 40. To be born “within the allegiance of the

sovereign” was to be “born within the dominions” of

the sovereign, and allegiance was automatically “due

from all natural born subjects to their sovereign”. Id.

at 509 (defining “natural born subjects” and “natural

allegiance”). No state of mind or pledge of allegiance

was necessary to be born a subject.

III.

Preratification evidence supports citizenship for the children of transient and

even criminal aliens.

These dictionary definitions drew from the common

law of birthright subjecthood. When the Court assesses historical practice, it looks “primarily to eminent common-law authorities (Blackstone, Coke, Hale,

and the like), as well as to early English and American

judicial decisions.” Kahler v. Kansas, 589 U.S. 271, 279

(2020); see also Dobbs, 597 U.S. at 242 (citing id.).

Here, the Government concedes that children of transient aliens born in the United Kingdom were subjects. Pet. Br. 40. Authorities from Dyer to Blackstone

make that meaning clear.

A. The relevant common-law tradition

Calvin’s Case, as reported by Edward Coke, then

Chief Justice of the Court of Common Pleas, is the

“leading case” at common law, Wong Kim Ark, 169

U.S. at 656—and one the Government does not mention. See Calvin v. Smith (Calvin’s Case), 77 Eng. Rep.

377, 7 Co. Rep. 1a (K.B. 1608).2 But the rule that

nearly “all persons born on English soil, no matter

what their parentage, owed allegiance to, and were

therefore subjects of[,] the king” predates Calvin’s

Case. 9 W.S. Holdsworth, A History of English Law 75

(1926).

Sir James Dyer, Coke’s predecessor as Chief Justice, reported several sixteenth century cases on the

subject. In concluding that a child born out of wedlock

2 Available at:

https://amesfoundation.law.harvard.edu/lhsemelh/materials/Cal

vinsCase.pdf (last accessed Feb. 26, 2026).

in Tournai (in present-day Belgium) while under English occupation could own English land, the Queen’s

Bench analogized to French parents who “come here

into England, stay here, and have issue a son; in this

case, by his being born here, he is a liege-man, although his father and mother were aliens.” 2 James

Dyer, Reports of Cases in the Reigns of Hen. VIII,

Edw. VI, Q. Mary & Q. Eliz. 224a-b (John Vaillant ed.

1794); see also Benjamin Keener, Essay, Calvin’s Case

and Birthright Citizenship, 174 U. Pa. L. Rev. Online

17, 25 & n.37 (Nov. 14, 2025).

By contrast, in Story’s Case, 2 Dy. 300b (Q.B. 1571),

a defendant argued that he was “not a subject” of

Queen Elizabeth but had allegiance to King Philip of

Spain and so could not be tried for treason. Id. The report described Story as “notoriously known to be born

in England . . . and by this a subject and liegeman of

the realm” owing allegiance to the Queen. Id. As expatriation was then unknown in England, his birth

there made him a subject amenable to judgment. That

logic extended to the case of a French alien charged

with treason. See Shirley’s Case, 2 Dy. 144a (Q.B.

1557). The report noted that “the indictment was

against the duty of his allegiance, when he was not a

subject of the realm; but this is of no signification”. Id.

at 145a (emphasis in original). Because England and

France were at peace, “to levy war with other English

rebels was sufficient treason”. Id. By contrast, if England and France were at war, “he should not be arraigned, but ransomed.” Id.

Coke picked up this distinction in Calvin’s Case,

which considered whether a child born in Scotland, after James VI assumed the English throne as James I,

was an alien unable to inherit real property. See Evan

D. Bernick, Antisubjugation and the Equal Protection

of the Laws, 110 Geo. L.J. 1, 23-24 (2021). Fourteen

justices—“all the King’s Bench and Common Pleas justices as well as the Lord Chancellor and barons of the

Exchequer”3—heard the case, and “all but two” concluded that the child was a natural-born subject who

could inherit because he was born within the allegiance of the English Crown.4 Coke’s report called allegiance “an incident inseparable to every subject: for

as soon as he is born he owe[s] by birth-right [allegiance] and obedience to his Sovereign.” 7 Co. Rep. at

4b. Coke compared the child born in Tournai while

“under the obedience of Henry the Eighth” with “an

issue born within this realm by aliens”—both were

natural subjects. Id. at 22b.5 So the child in Calvin’s

Case, born on land controlled by the English king, had

been “naturalized by procreation and birth-right” to

subjecthood. Id. at 14b; see also id. at 27b (natural subjecthood is “due and vested by birthright”).

This birthright subjecthood was not limited to the

children of domiciled aliens; it extended to the children

of aliens whose allegiance was “but momentary and

uncertain”. Id. at 6a. Coke reported “three incidents”

3 Polly J. Price, Natural Law and Birthright Citizenship in

Calvin’s Case (1608), 9 Yale L.J. & Humans. 73, 82 (1997).

4 Bernick, Antisubjugation, 110 Geo. L.J. at 23.

5 To the extent that private papers discern public meaning

(and generally they cannot), Coke connected the rationale of

subjecthood for the “bastard born at Tournai” to that of an “an

issue born in England,” for “whoever is born upon the king’s

land is the king’s subject, and whoever is [present] upon any

part of the land, even if he is an alien, owes obedience to the

king”. 6 Reports from the Notebooks of Edward Coke 1437 (John

Baker ed. 2025).

that together make a subject at birth: “1. That the parents be under the actual obedience of the King. 2. That

the place of his birth be within the King’s dominion.

And, 3. The time of his birth” excluded rule over that

dominion by another sovereign. Id. at 18a. A child born

to transient alien parents in England met that test:

they were born “within the King’s dominion” when no

other sovereign ruled England, and their parents owed

temporary allegiance to the King while there. Coke

cited the Frenchman from Shirley’s Case as one example; he was “in amity with the King” and came to England before joining in treason. Id. at 6a. Shirley could

be prosecuted for treason because he owed “local obedience, that is, so long as he was within the King’s protection; which local obedience being but momentary

and uncertain, is yet strong enough to make a natural

subject, for if he hath issue here, that issue is . . . a

natural born subject”. Id.6

Coke’s report recognized two exceptions to this

rule: ambassadors, whose children were subjects of

their home countries under a legal fiction related to

diplomatic immunity, and the children born to enemy

aliens in occupied English lands. Id. at 18a-b. The latter exception applied during a formal time of war declared by the King, for the power to make war belonged

“only and wholly to the King, and not to the subject”.

Calvin’s Case, 7 Co. Rep. at 25b; but see Keener, supra

6 The report by Lord Chancellor Ellesmere put it likewise:

“And he that is born in any of the king’s dominions, and under

the king’s obedience . . . cannot be a stranger or alien to the

king”. 2 A Complete Collection of State Trials 679 (Thomas

Bayly Howell ed. 1816).

at 36-37 (discussing “levying war” in lieu of declaration).

The Government’s amici misread Perkin Warbeck’s

Case, which relates to that latter exception. There, a

pretender to the English throne invaded England and

was “taken in war” and tried by court martial instead

of at common law—unlike the Frenchman tried for

treason in Shirley’s Case. Calvin’s Case, 7 Co. Rep. at

6b; contra Sen. Cruz Br. 6-7. It was not the illegality

of Warbeck’s actions that distinguished him from

Shirley, but that Warbeck landed in England with a

militia, raised an army of 8,000, and sieged Exeter. See

Hannes Kleineke, Unrest in the West: The Perkin Warbeck Conspiracy, History of Parliament Blog! (Nov. 23,

2024), available at: https://shorturl.at/HsGj8. If amici

were correct, by contrast, Shirley’s treachery should

have meant no trial. These cases make clear that only

war can defeat amity.

The founding generation knew this tradition

through Blackstone, who wrote: “The children of aliens, born here in England, are, generally speaking,

natural-born subjects, and entitled to all the privileges

of such.” 1 William Blackstone, Commentaries *354,

*361-62 (1765); see also 1 Timothy Cunningham, A

New and Complete Law Dictionary, at “Alien” (2d ed.

1771) (“If an alien comes into England, and has issue

two sons, those two sons are indigenae [native], subjects born, because born within the realm.”). For the

native born, there was “an implied, original, and virtual allegiance, owing [f]rom every subject to his sovereign, antecedently to any express promise”. Blackstone, 1 Commentaries at *356-57; see also id. at *358

(describing the allegiance-for-protection bargain of

subjecthood as “an implied contract”). Blackstone defined natural-born subjects as those “born within the

dominions of the crown of England, that is, within . . .

the allegiance of the king” and aliens as those “born

out of it”. Id. at *354. Blackstone also endorsed the notion of temporary allegiance, which lasted “for so long”

as the alien “continues within the king’s dominion”. Id.

at *358.

1. The irrelevant medieval history

This was the common-law understanding from

Dyer to Blackstone. Professor Wurman’s study of English letters of “safe conduct,” by contrast, considers a

period too old for constitutional relevance, one that he

traces to the 12th century but concedes declined by the

14th. Wurman Br. 11. A “short-lived, 14th-century

English practice” is categorically less probative than

Coke and Blackstone. Bruen, 597 U.S. at 35.

“Safe conduct” was not synonymous with “amity”

anyway. Coke mentions that even an enemy alien may

come “into the realm by the King’s safe conduct”. Calvin’s Case, 7 Co. Rep. at 18a. Safe-conducts were either

“expressly granted by the king or his ambassadors to

the subjects of a foreign power in time of mutual war”

or “general[ly] implied” for those “in amity, league, or

truce”. 4 Blackstone, Commentaries *68 (1769). Matthew Hale dispelled any continuing relevance for safe

conduct letters outside wartime, discussing aliens who

came “with the queen’s protection,” which did not

change anything because “every foreigner living publicly and trading here is under the king’s protection”

by the Magna Carta. 1 Matthew Hale, The History of

the Pleas of the Crown 93 (1736). The Continental Congress shared that understanding, explaining in a 1781

resolution that “safe conducts” were “expressly

granted under the authority of Congress to the subjects of a foreign power in time of war” but those “in

amity, league or truce with the United States” are “under a general implied safe conduct”. 21 Journals of the

Continental Congress, 1774-1789, at 1136 (Gaillard

Hunt ed. 1912).

Far from undermining birthright citizenship, safeconducts are consistent with Coke’s wartime exception. In a war, those aliens owed the English king no

allegiance, but safe-conducts could change that by extending to enemy aliens the king’s temporary protection, in exchange for which they owed temporary allegiance to England. Safe-conducts aren’t analogues for

modern immigration status, but even if they were, in

the United States in 1789, an “implied” safe-conduct

“would have covered every citizen or subject of a European state since the United States was not then at

war.” Thomas H. Lee, The Safe-Conduct Theory of the

Alien Tort Statute 106 Colum. L. Rev. 830, 837 (2006),

cited at Wurman Br. 14.

Early American practice

While some claim that independence changed

birthright citizenship (see, e.g., Claremont Br. 17-18),

the common-law understanding “was the law of the

colonies, and became the law of each and all of the

states when the Declaration of Independence was

made, and continued so until the establishment of the

constitution of the United States”, which kept it.

2 James Kent, Commentaries 38-39 n.a (6th ed. 1848);

see generally Michael D. Ramsey, Originalism and

Birthright Citizenship, 109 Geo. L.J. 405, 410-16, 43741 (2020).

1. Colonial era

The Declaration of Rights and Grievances adopted

by the Stamp Act Congress explained that the colonists owed “the same allegiance to the Crown of GreatBritain, that is owing from his subjects born within the

realm” of Great Britain. Resolutions of the Continental

Congress

(Oct.

19,

1765),

available

at:

https://shorturl.at/lSCZx. On the eve of independence,

the Continental Congress redefined that allegiance

away from the King and toward colonial law, while

keeping the general concepts intact:

That all persons abiding within any of the

United Colonies, and deriving protection

from the laws of the same, owe allegiance

to the said laws, and are members of such

colony; and that all persons passing

through, visiting, or make a temporary

stay in any of the said colonies, being entitled to the protection of the laws during

the time of such passage, visitation or temporary stay, owe, during the same time, allegiance thereto[.]

5 Journals of the Continental Congress 475 (June

24, 1776).

2. Declaration of Independence

The text of the Declaration itself refutes the suggestion that it departed from the common law to create

a parental domicile requirement. Contra Claremont

Br. 17-18. It criticized George III for limiting the colonial population by “obstructing the Laws for Naturalization of Foreigners”. The Declaration of Independence (1776). It would make little sense to suppose in

this context that the Constitution silently sought to

make citizenship harder to come by. That inference

was also rejected by the earliest American court to consider it, which followed the “operative” common-law

definition of “aliens” as those born outside the Crown’s

allegiance to parents who were not English subjects,

favorably citing Calvin’s Case. Martin v. Brown, 7

N.J.L. 305, 335-36 (N.J. 1799). Birth within the

Crown’s allegiance—even to parents who were not

English subjects—would make a subject.

3. Constitution in 1789

The Constitution uses “Citizen” throughout. See,

e.g., art. I, §§ 2-3; art. II, § 1 (“natural born Citizen”);

art. III, § 2; art. IV, § 2. “The term citizen, was used in

the constitution as a word, the meaning of which was

already established and well understood.” Lynch v.

Clarke, 1 Sand. Ch. 583, 656 (N.Y. Ch. 1844). “Natural

born,” in particular, signaled a continuation of “natural-born subjecthood”: the Framers, if not the public,

“knew that in English law ‘natural born’ had a core

meaning of birth within sovereign territory”. Michael

D. Ramsey, The Original Meaning of “Natural Born”,

20 U. Pa. J. Const’l L. 199, 245 (2017); see also Lynch,

1 Sand. Ch. at 656 (“The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted

since.” (emphasis in original)).

4. Early statutes

The Constitution also gives Congress the power to

create a “uniform Rule of Naturalization”. Art. I, § 8,

cl. 4. Congress first did so in 1790, providing that “the

children of citizens of the United States, that may be

born beyond sea, or out of the limits of the United

States, shall be considered as natural born citizens”

unless their fathers had never been U.S. residents. An

Act to Establish an Uniform Rule of Naturalization, 1

Stat. 103, 104 (1790) (repealed 1795). If the Government’s amici were correct that “the citizenship of the

child followed the citizenship of his parents”, Epstein

Br. 13, there would be no need for a statute granting

citizenship to children of American citizens. But in the

first session of Congress, James Madison called it “an

established maxim that birth is a criterion of allegiance”, which “derives its force sometimes from place,

and sometimes from parentage; but in general, place

is the most certain criterion”, and place “is what applies in the United States”. 1 Annals of Congress 404

(1st Sess. 1789) (Joseph Gales ed., 1834).

5. Antebellum cases and commentary

The Court’s early cases presupposed citizenship at

birth within the United States and that aliens here

owe a temporary allegiance to the country, showing

that the common-law foundation continued to apply

after the Constitution was ratified. See, e.g., Schooner

Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 144 (1812)

(“When private individuals of one nation spread themselves through another” they “owe temporary and local

allegiance” and are “amenable to the jurisdiction of the

country.”); Murray v. Schooner Charming Betsy, 6 U.S.

(2 Cranch) 64, 119-120 (1804) (being “born within the

United States” makes one a citizen and aliens owe “local and temporary allegiance” to countries they enter).

The Government’s amici try to limit Gardner v.

Ward, 2 Mass. 236 n.a (1805), as a rule of merely English law because the person at issue was born in Massachusetts in 1747 and “was therefore a British subject” at birth. Claremont Br. 13; see Epstein Br. 21, 2425. But that court was deciding whether he was a U.S.

citizen despite leaving the States during the Revolution. Far from rejecting the common law, the court

thought the question was “governed altogether by” it.

2 Mass. at 236 n.a. Justice Sewall’s lead opinion considered it “established, with a few exceptions not requiring our present notice, that a man, born within the

jurisdiction of the common law, is a citizen of the country wherein he is born”, and that “[b]y this circumstance of his birth, he is subjected to the duty of allegiance” and entitled to “citizenship.” Id. Justice Sewall

traced this “right of citizenship in the native soil” to

Calvin’s Case as “reported by Lord Coke.” Id. Only

later “laws and decrees” in Massachusetts could

change that, and the court found none that did. Id.

Gardner itself appears in a footnote to Kilham v.

Ward, a case from the next term that the Government

and its amici ignore. In Kilham, the court reaffirmed

that understanding in concluding that a man born in

Massachusetts was an American citizen: “The doctrine

of the common law is, that every man born within its

jurisdiction is a subject of the sovereign of the country

where he is born; and allegiance” is owed to the “sovereign of the territory where the person owing the allegiance was born.” 2 Mass. at 264-65 (1806).

The Government instead relies on Justice Story’s

“reasonable qualification” (at 22) to what he called

“public law” to deny birthright citizenship to the children of transient aliens. To begin with, Justice Story

recognized the governing rule: “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto,

are subjects by birth.” Inglis v. Trs. of Sailor’s Snug

Harbor, 28 U.S. (3 Pet.) 99, 164 (1830) (Story, J., dis-

senting) (emphasis added). The Government’s quotations of this language (at 22, 33) omit the italicized

words, which show that even temporary allegiance

suffices for the children of transient or criminal aliens

to be born subjects. Justice Story’s Commentaries—

which concerned the choice of law between nations,

the “public law”—again acknowledged that those

“born in a country” “are generally deemed citizens and

subjects of that country.” Commentaries on the Conflict of Laws, Foreign and Domestic § 48 (1834). And in

private practice, Story—who apparently argued Kilham—contended that “every person born within a

realm owes allegiance to the sovereign thereof”, which

was “fully stated and approved in” Calvin’s Case. 2

Mass. at 262. Nowhere did Justice Story find that the

common law that passed in relevant part to the

United States was abrogated to require parental domicile for birthright citizenship.

The leading antebellum case found that Justice Story’s qualifications “were certainly unknown to

the common law in England, and as established in the

United States.” See Lynch, 1 Sand. Ch. at 678. The

Government and its amici give New York’s Court of

Chancery short shrift as “merely a state trial court”.

Claremont Br. 14; see also Pet. Br. 41; Wurman Br. 1920. But New York’s Chancery Court of yesteryear, like

Delaware’s today, “was one of the pre-eminent courts

in the United States.”7

7 New York Court of Chancery, 1683-1846, Hist. Soc’y of the

N.Y. Courts, https://history.nycourts.gov/court/court-chancery/

(last accessed Feb. 26, 2026); see also Bernick, Gowder & Kreis,

supra, at 111-112 (collecting antebellum sources citing Lynch).

In Lynch, the Court of Chancery held that a woman

“born in this state, of alien parents, during their temporary sojourn” was a citizen. 1 Sand. Ch. at 638.

There was “no doubt, but that by the law of the

United States, every person born within the dominions and allegiance of the United States, whatever

were the situation of his parents, is a natural born citizen.” Id. at 663. Besides being widely cited, Lynch is

persuasive for its original public meaning methodology. The opinion appealed to the “universality of the

public sentiment” as “part of the historical evidence”

of the law, showing “the strength and depth of the common law principle” and confirming “that the adoption

of the Federal Constitution wrought no change in that

principle.” Id. at 664. As for the citizenship of children

of transient aliens, “the general understanding of the

legal profession, and the universal impression of the

public mind . . . is that birth in this country, does of

itself constitute citizenship.” Id. at 663. For “[n]o one

asks [a voter] whether his parents were citizens or

were foreigners. It is enough that he was born here,

whatever were the status of his parents.” Id. at 664

(emphasis in original).

As shown above, Lynch was not the only antebellum authority to identify this background principle

(contra Epstein Br. 25-26), but there were more besides:



“The children of aliens, born in this state, are

considered as natural born subjects”. 1 Zephaniah Swift, A System of the Laws of the State of

Connecticut 163, 167 (1795).



“[E]very person born within the United States

. . . whether the parents are citizens or aliens, is

a natural born citizen in the sense of the Constitution”. William Rawle, A View of the Constitution of the United States of America 86 (2d ed.

1829).



“Before our Revolution all free persons born

within the dominions of the king of Great Britain . . . were native born British subjects—those

born out of his allegiance were aliens”, and so

“all free persons born within the State are born

citizens of the State.” State v. Manuel, 20 N.C.

144, 151 (1838).



“Natives are all persons born within the jurisdiction and allegiance of the United [S]tates

. . . . This is the rule of the common law, without

any regard or reference to the political condition

or allegiance of their parents, with the exception of the children of ambassadors, who are in

theory born within the allegiance of the foreign

power they represent.” 2 Kent, Commentaries

38-39 n.a.



“Here is the Great Charter of every human being drawing vital breath upon this soil, whatever may be his condition, and whoever may be

his parents. He . . . may be of Caucasian, Jewish, Indian, or Ethiopian race,—he may be of

French, German, English, or Irish extraction;

but before the Constitution of Massachusetts all

these distinctions disappear . . . . He is one of

the children of the State”. Sen. Charles Sumner,

Equality Before the Law (1849), reprinted in

3 Charles Sumner: His Complete Works 65-66

(1900).



“The child of an alien, if born in the country, is

as much a citizen as the natural-born child of a

citizen, and by operation of the same principle.”

Horace Binney, The Alienigenae of the United

States under the Present Naturalization Laws

22 n.* (2d ed. 1853), quoted in Wong Kim Ark,

169 U.S. at 665.



“And as no person born within the jurisdiction

can avoid this allegiance. . . . But with th[e] exception [of Tribes], every person born within our

territorial limits owes this allegiance, and is

constituted a citizen, as an inevitable consequence of his birth”. Op. of the Justices of Supreme Judicial Court, 44 Me. 505, 1857 Me.

LEXIS 151, at *123-24 (1857) (op. of Davis, J.).



“[A] free white person born in this country, of

foreign parents, is a citizen of the

United States.” 9 Op. Att’y Gen. 373, 374 (July

18, 1859) (Black citing Lynch).



“I am quite clear in the opinion that children

born in the United States of alien parents, who

have never been naturalized, are native-born

citizens of the United States”. Citizenship of

Children Born in the United States of Alien Parents, 10 Op. Att’y Gen. 328 (Sept. 1, 1862)

(Bates).



“All persons born in the allegiance of the king

are natural born subjects, and all persons born

in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and

it is the common law of this country, as well as

of England. There are two exceptions, and only

two, to the universality of its application. The

children of ambassadors . . . and slaves”.

United States v. Rhodes, 27 F. Cas. 785, 789

(Cir. Ct. D. Ky. 1866) (Swayne, J.).

6. Newspapers

Still more public evidence that the common-law

rule survived comes from the press. In 1854, The New

York Times published a letter from Secretary of State

William Marcy answering questions about Presidential eligibility. The questions distinguished between a

child born “of alien parents, who had not, at the time

of his birth, declared their intentions to become citizens of the United States” and the child of parents who

had—was either a citizen? William L. Marcy, Native

Sons of Alien Parents, N.Y. Times 3 (Mar. 20, 1854),

available at: https://www.nytimes.com/1854/03/20/archives/native-sons-of-alien-parents.html. Marcy rejected that dichotomy, answering “that every person

born in the United States must be considered a citizen,

notwithstanding one or both of his parents may have

been alien at the time of his birth.” Id. Marcy defined

the rule “in conformity with the English Common Law,

which law is generally acknowledged in this country”.

Id.

Professor Wurman cites a later letter to the Times,

but admits that this was promptly rebutted by another

letter. See Wurman Br. 24 & n.9. The response8 duplicated a discussion of Blackstone, Kent, and Lynch that

appeared in Lyndon v. Danville, 28 Vt. 809, 816 (1856),

another sign that common-law birthright citizenship

remained in public awareness.

IV.

The drafting and ratification debates recognized citizenship for children of transient aliens and those unlawfully present.

Repeated statements make clear that members of

Congress understood and explained to the public that

the 1866 Act and Fourteenth Amendment meant citizenship for children born here of transient or unlawfully present aliens.

A. The Civil Rights Act of 1866

The Reconstruction Congress first drafted and

passed the Civil Rights Act of 1866 as it started drafting the Fourteenth Amendment. The 1866 Act used

the phrase “not subject to a foreign power,” rather

than the Fourteenth Amendment’s phrase, “subject to

the jurisdiction thereof.” Compare Civil Rights Act of

1866, ch. 31, 14 Stat. 27 (1866), codified as amended

at 42 U.S.C. §§ 1981-1982 with U.S. Const. amend.

XIV, § 1. But it was clear that children of transient aliens born in the United States were “not subject to a

foreign power.” Senator Cowan asked whether Senator

Trumbull’s proposed language “will not have the effect

of naturalizing the children of Chinese and Gypsies

born in this country?” Cong. Globe, 39th Cong., 1st

8 Naturalized Citizens and the Draft, N.Y. Times 8 (Aug. 10,

1862), available at

https://timesmachine.nytimes.com/timesmachine/1862/08/10/789

90736.html?pageNumber=8.

Sess. 498 (1866). Trumbull replied that it “undoubtedly” would, adding that “the child of an Asiatic is just

as much a citizen as the child of a European.” Id.; see

also Shugerman, An Originalist Case, supra, at 25;

Ramsey, Originalism, supra at 453. As explained below, it was a widespread stereotype that many of these

immigrants were transient.

The debates cited salient anti-immigration laws and transient aliens.

The Government claims (at 29) that there was “little occasion to discuss children of illegal aliens” when

Congress turned to the text of the Fourteenth Amendment because federal immigration laws came later.

That is doubly incorrect.

First, the concept of “unlawful immigrant” did exist

in the 1850s-1860s, most saliently in the legal and political movement against Chinese immigrants and in

England’s historical exclusions against the Roma people. These “exchanges in 1866 occurred after California, Oregon, and the territory of Washington had established anti-Chinese restrictions” creating an unlawful status for Chinese immigrants and “after the

federal government had criminalized the ‘Coolie trade’

anti-Chinese

immigration

measure.”

Shugerman, An Originalist Case, supra, at 26; see also

Charles J. McClain, Chinese Immigrants in the California Supreme Court: The Earliest Civil Cases, 19

Cal. L. Hist. 73, 96 (2024). Throughout the 1850s and

1860s, Americans portrayed Chinese immigrants as

“Coolies,” a racist slur implying indentured servitude

and allegiance to a Chinese master.

Second, the debates on the Fourteenth Amendment

included discussion about these restrictions. With the

Citizenship Clause on the floor, Cowan asked if “the

child of the Chinese immigrant in California” or “the

child of a Gypsy born in Pennsylvania” were citizens.

Cong. Globe, 39th Cong., 1st Sess. 2890. Cowan

warned that the amendment would let Chinese immigrants “overrun” California and “will double or treble

the population”. Id. at 2891. Cowan also noted California’s attempts “to forbid the entrance into her territory” of Chinese immigrants. Id. Cowan claimed Roma

“wander in gangs” and “have no homes, pretend to own

no land, live nowhere, settle as trespassers where ever

they go, and whose sole merit is a universal swindle”.

Id.

Senator Conness responded that as for “the children begotten of Chinese parents in California . . . it is

proposed to declare that they shall be citizens.” Id.

Linking the amendment to “the proposition contained

in the civil rights bill,” Conness confirmed that Congress had already declared “that the children of all

parentage whatever, born in California, should be regarded and treated as citizens of the United States”.

Id. He claimed that Chinese persons in California

were itinerant and would “return invariably” to China.

Id. Conness also recognized the restrictive statutes

California had enacted to limit Chinese immigration—

and while he noted that state courts had held some of

them unconstitutional (and referred to the Commerce

Clause), the exchange indicated that questions about

immigration restrictions were already salient. See id.

at 2892. No Senator rose to agree with Cowan or dispute what Conness said, and there were no further

changes to the Citizenship Clause’s language. See

Shugerman, An Originalist Case, supra, at 25; Ramsey, Originalism, supra, at 447-48

Both Cowan and Conness claimed that certain

groups of aliens were itinerant and discussed efforts

by California to prohibit the entry of Chinese nationals. The categories of transient and unlawful aliens

were both discussed, and as both sides recognized, the

final text of the Fourteenth Amendment made their

children citizens.

The Government cherry-picks

For the most part, the Government avoids the

1866 Congressional debates, citing (at 23-24) just two

statements: from Representative James Wilson and

from Senator Benjamin Wade’s draft of the Fourteenth Amendment. Already “an exercise in looking

over a crowd and picking out your friends”, Exxon

Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568

(2005) (cleaned up), each example is flawed.

Wilson favorably cited Manuel, Blackstone, and

Kent in support of the common-law rule, “which

claims as a subject every person born within the jurisdiction of the Crown”. Cong. Globe, 39th Cong., 1st

Sess. 1116-17. That principle “applies to this country

as well as to England”, Wilson said. Id. at 1116. As

shown above, there was no exception to birthright citizenship at common law for children of “temporary

sojourners”, whatever Wilson thought. Contra

Wurman Br. 29; cf. Gamble v. United States, 587 U.S.

678, 699 (2019) (Constitution does not codify “a common-law right that existed in legend, not case law”).

The Government also overreads Senator Wade’s

abandoned draft of the Fourteenth Amendment, which

had no citizenship clause. In response to the draft,

Senator Fessenden asked, “Suppose a person is born

here of parents from abroad temporarily in this coun-

try.” Cong. Globe, 39th Cong., 1st Sess. 2769. Wade responded that his colleague “says a person may be born

here and not be a citizen”—but Wade recognized only

a narrow exception: “the case of the children of foreign

ministers” in the United States under a “fiction of

law”. Id. This “could hardly be applicable to more than

two or three or four persons; and it would be best not

to alter the law for that case.” Id. “It would make no

difference in the result” to word around that category,

Wade said. Id. It’s difficult to see how the Citizenship

Clause reversed that answer. And if there were any

conflicting inferences to be drawn from the record,

they would just show why “[i]t is always perilous to

derive the meaning of an adopted provision from another provision deleted in the drafting process.” Heller,

554 U.S. at 590.

Whatever weight those two statements deserve,

others support the broader interpretation. See, e.g.,

Cong. Globe, 39th Cong., 1st Sess. 1757 (Sen. Trumbull: “[E]ven the infant child of a foreigner born in this

land is a citizen of the United States long before his

father.”); id. at 1832 (Rep. Lawrence (citing Lynch));

id. at 2893 (Sen. Johnson: “I know of no better way to

give rise to citizenship than the fact of birth within the

territory of the United States, born of parents who at

the time were subject to the authority of the

United States.”).

The letter and spirit of citizenship mutually reinforce the public meaning.

The plain meaning at the time of ratification, the

Reconstruction debates, and the common law history

all demonstrate that children of transient aliens or unlawful entrants are citizens. The broader context is uncontested: to repudiate Dred Scott and end race-based

citizenship. But under the Government’s test, many

children of slaves would not have been citizens. The

Government’s interpretation defies not just the letter

of the Fourteenth Amendment, but its spirit—its original, publicly known function.

The trafficking of slaves into the United States was

outlawed in 1808. See An Act to Prohibit the Importation of Slaves, 2 Stat. 426, § 1 (1807). Yet thousands

more were unlawfully taken here afterward. See J. David Hacker, From ‘20. and odd’ to 10 million: The

Growth of the Slave Population in the United States,

41 Slavery & Abolition 840, 846 (2020); see generally

Gabriel J. Chin & Paul Finkelman, Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation, 54 U.C. Davis L. Rev.

2215 (2021). They were, through no fault of their own,

unlawfully present in the United States, and presumably many wished to return home. But by the Government’s logic, that would mean their children weren’t

citizens by default. The Fourteenth Amendment would

have recreated a racial caste where one could be “a citizen to obey, and an alien to demand protection.” William Yates, Rights of Colored Men to Suffrage, Citizenship and Trial by Jury 37 (Philadelphia: Merrihew &

Gunn 1838) (cleaned up). That can’t be right.

* * *

After centuries recognizing birthright citizenship

for the children of aliens, the Government fashions a

new rule from a letter in a box and the same recycled

citations that the Court rejected in Wong Kim Ark.

There’s nothing originalist about that. In all but the

narrowest brightline exceptions, our Constitution and

laws have always recognized that when the children of

aliens are born here, each of them is one of us.

CONCLUSION

For all these reasons, the Court should affirm.

Respectfully submitted,