Birthright Citizenship and Apophatic Interpretation

Carolina Núñez and Lucy WilliamsFor the last 15 months, the entire legal academy has fixated on five words: “subject to the jurisdiction thereof.” These words are the only limitation in the Fourteenth Amendment’s broad grant of citizenship to “[a]ll persons born or naturalized in the United States.”[1] They are also the words that the Trump administration seized upon in its executive order denying citizenship to children of undocumented immigrants. Since that EO issued, legal scholars have expended considerable effort debating what, exactly, “subject to the jurisdiction” requires. These debates have been so exhaustive (and so exhausting) that when the oral arguments in Trump v. Barbara finally rolled around, it was hard to imagine that those arguments might produce anything new. And for the most part, they didn’t. The oral arguments largely tracked the parties’ briefs, which themselves draw heavily on the academic literature. Because of this, the arguments were relatively predictable,…