Inside The Plot To Write Birthright Citizenship Out Of The Constitution

At the RNC in July, JD Vance had a message: America is not “an idea,” he said in his speech introducing himself as Donald Trump’s vice presidential pick.

Rather, Vance argued that the country is a “people with a common history.” His vision of American citizenship immediately stood out as at odds with what’s made the U.S. distinct from other nations: Most countries issue citizenship based on various markers of national heritage, but not America, where a passport is granted by virtue of being born here and citizenship has largely been seen as having a civic, and not ancestral, character.

But a segment of right-wing, GOP-aligned activists and researchers have long sought to put Vance’s idea into practice by finding a way to bulldoze the main obstacle in their way: the 14th Amendment of the U.S. Constitution, which establishes that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

For years, this group faced a lonely fight to overturn or overlook that portion of the Constitution. Most conservative lawyers and scholars rejected it. Republican presidential administrations didn’t want to have anything to do with it. And, in Congress, it was an objective relegated to only a handful of Republicans. They’d hold hearings on it here and there when in power and occasionally introduce messaging bills, but the idea was going nowhere.

Then came Donald Trump.

Now, after years in the wilderness, the fight to thwart a bedrock Constitutional provision that grants citizenship to nearly everyone born on American soil has been thrust onto center stage. Trump has said he is likely to issue an executive order curtailing birthright citizenship on his first day in office, potentially directing government agencies to stop issuing passports and social security numbers to the children of undocumented immigrants. The full scope of any potential order is still unclear, but it would be almost guaranteed to prompt a legal battle as the federal government seeks to flout more than a century of legal precedent holding that the 14th Amendment — passed in part to ensure that freed slaves would receive citizenship after the Dred Scott decision and the Civil War — applies to nearly everyone born on American soil.

Several of those who, before Trump took office, pushed fringe interpretations of that history in an effort to end birthright citizenship also worked on the legal elements of his 2020 coup attempt. John Eastman, the attorney who pushed to have Mike Pence reject electoral votes in January 2021, has been a proponent of the move for decades. Ken Chesebro, seen as the architect of the fake electors scheme, co-wrote a Supreme Court brief with Eastman in May 2016 that dismissed birthright citizenship as a “vestige of feudalism.”

“This is one for the true believers in the MAGA coalition,” Jed Shugerman, a law professor at Boston University, told TPM, describing it as coming from a “paranoid conspiracy-theory narrative” that regards birthright citizenship as a “decades-long insurrection” to “displace a heritage of white voters with immigrants.”

19th Century Minds

Wherever you look in the movement to end birthright citizenship, you’ll find the Claremont Institute, a Southern California nonprofit that has been described as a “nerve center” for pro-Trump conservatives.

Many of the most vocal advocates for restricting citizenship to only those born to the children of lawful permanent residents hail from, or have some tie, there.

They make versions of the same argument: The historical record from the 1860s, when the 14th Amendment was enacted, suggests that birthright citizenship should only have been extended to the children of legal, permanent residents. The phrase “subject to the jurisdiction thereof” in the amendment limits it to only those with allegiance to the United States, they argue — a reading that they say would exclude undocumented immigrants. Though a 1898 Supreme Court ruling, United States v. Wong Kim Ark, is widely understood to find that nearly all U.S.-born children of immigrants are citizens under the 14th Amendment, it in fact only dealt with the children of permanent residents, the argument goes, and has been misinterpreted for more than a century.

Proponents make this argument with various degrees of force. Edward Erler, a longtime California State University political science professor and Claremont fellow, laid a version of the argument out in the National Review in 2015. Michael Anton, a longtime Claremont fellow who served on the National Security Council in Trump’s first administration and is headed to the State Department in Trump’s second, argued in a 2018 Washington Post op-ed for a Trump executive order curtailing birthright citizenship; in August 2024, he dismissed those who disagree as “betray[ing] a fundamental misunderstanding of the nineteenth century American mind.”

John Eastman has been a presence throughout.

He appeared before a House panel in 2005, and framed his argument in terms very familiar to anyone who lived through 9/11 and its aftermath: “The prospect of potential terrorists coming across our border and giving birth to children once they’re here in order to specifically open up a Fifth Column on our shores is a very real possibility,” he told members of Congress.

Eastman has continued to make the case both in legal arguments and in public. He appeared at an April 2015 House hearing on the same topic alongside Lino Graglia, a University of Texas legal scholar known for agreeing that the 14th Amendment does not cover birthright citizenship. Graglia was also known for arguing in a 1999 article that Blacks were “overrepresented” in universities “once IQ scores are taken into account.”

In 2016, Eastman co-wrote an amicus brief on the issue in a case about whether people born in territories like American Samoa are entitled to birthright citizenship. Eastman submitted it on behalf of Erler, the Claremont scholar, and collaborated with then-obscure appellate attorney Ken Chesebro on the filing. The amicus brief asked the Supreme Court not to grant the case, after the D.C. Circuit ruled that territorial residents are not entitled to birthright citizenship. The Court did not hear the case.

Serious About What?

Opponents of birthright citizenship tend to front the arguments for action ahead of legal reasoning. The current policy is ridiculous, they say: How can it be that people who violate the border can have U.S. citizen children? How can it be that wealthy foreigners can come here on tourist visas, give birth, and depart with a lifelong tie to the United States?

Shugerman, the BU law professor, attributed the push to interpret birthright citizenship out of existence more to that right-wing outrage over immigration, and less to genuine disagreement around the legal and historical record: “It’s not really about the 14th Amendment. There’s a political agenda that’s anti-immigrant, and the irony here is who’s really an originalist.”

“I think some of the people who are contesting it are not serious about original public meaning, but they are quite serious about nativism,” he added.

Those in favor of ending birthright citizenship push back furiously against the charge — that they’re not really motivated by law and, in fact, are motivated by nativism.

As they tell it, maybe some of those pushing to rewrite this section of the Constitution were motivated to search in the legal archives because of an outcome they didn’t like — undocumented immigrants and their U.S. citizen children — but once they got really deep into the history, they happened to reach a conclusion that aligned with what they wanted.

“It probably was on our radar earlier than others, given the fact that we’ve been in California for 45 years and have seen the illegal immigration problem up close,” Ryan P. Williams, president of the Claremont Institute, told TPM in a Wednesday phone conversation. “And so, some of our scholars wanted to get down to the roots of this argument and of this problem and try to make the case both in a scholarly fashion and in public that we’ve turned down a wrong path on the question of birthright citizenship in terms of the proper interpretation of the 14th Amendment.”

The broader agenda here aligns with what Vance — whose pick for vice president was celebrated by Claremont — articulated in his RNC speech: transforming American citizenship such that it relies more on ancestry. Where that might go is unclear. Williams told TPM that he wouldn’t push an end to birthright citizenship that applies retroactively. Eastman has said the same thing, though he made a possible exception in 2020 for Kamala Harris in an essay that argued she was not a “natural born citizen” due to her parents’ potentially lacking permanent residency at the time of her birth.

When TPM asked how this would align with America as an idea, as a country where nearly everyone apart from Native Americans can trace their ancestry to immigrants over the past several hundred years, Williams asserted that it was a misunderstanding of the country’s true nature.

“We’re a nation of settlers more than immigrants, although we’ve certainly admitted many, many, many tens of millions of immigrants over the years,” he said.