The U.S. Supreme Court recently heard oral argument in Trump v. Barbara, a case addressing whether the President can end birthright citizenship by executive action. This issue has fostered considerable debate in recent years. While the majority of legal scholars believe birthright citizenship is available to all, a vocal minority of conservative legal scholars believe the President can end the right.

These scholars have two primary arguments against birthright citizenship: one is political and the other is legal. The political argument is that birthright citizenship promotes both undocumented immigration and what is known as birth tourism. Solicitor General Sauer mentioned both of these phenomena during oral argument.

The legal argument is one Professor Richard Epstein articulated in a blog post for the Civitas Institute shortly following the original executive order. He essentially claimed that the U.S. Supreme Court decision first recognizing birthright citizenship, United States v. Wong Kim Ark, has been misread for over a century. Epstein’s post was followed by two additional academic defenses: a New York Times op-ed entitled, “Trump Might Have a Case on Birthright Citizenship” and a more vehement defense in a Wall Street Journal essay entitled, “Trump is Right on Birthright Citizenship.”

These legal arguments, likely influenced by the political arguments, are based on the text of the 14^th Amendment, which provides in relevant part, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” Using an originalist framework, the defenders of the executive order argue the “subject to the jurisdiction thereof’ language puts a condition on birthright citizenship. Specifically, they claim the 14^th Amendment does not apply to those who have no allegiance to this country, that undocumented immigrants are such people because they entered the country in violation of our laws, and that the children of the undocumented likewise possess no allegiance.

Trump’s scholarly defenders purport to look to what the 39^th Congress intended when it enacted the 14^th Amendment. These defenders, as well as the Solicitor General during his oral argument, quote Senator Lyman Trumbull (R. Ill.) during the 39^th Congress’ debate of the clause when he said, “subject to the jurisdiction means not owing allegiance to anybody else.”

But this very quote completely undermines the entirety of their argument. The defenders fail to examine Senator Trumbull’s full quote, which emphasized that if one can be sued in U.S. courts and is compelled to comply with federal or state law, that person has “complete allegiance” to the U.S. and is therefore “subject to the jurisdiction of thereof.”

Senator Trumbull’s full quote is as follows:

What do we mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else… That is what it means. … We have had in this country … a large region of country within the territorial limits of the United States … over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indians roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them.

Senator Trumbull then explicitly tied being “subject to the jurisdiction” to being accountable in U.S. courts, adding: “Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction.” Trumbull concluded; “[i]t is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.”

Thus, Senator Trumbull’s partial quote of “subject to the jurisdiction means not owing allegiance to anybody else” actually misconstrues his concept of “allegiance.” He made it clear that if someone can be sued in U.S. courts and is compelled to comply with federal or state law, they have “complete allegiance.” The rest of the 39^th Congress confirmed Trumbull’s view of citizenship, and even rejected arguments—similar to those of today—that those born of parents ineligible for citizenship were ineligible for citizenship. The 39^th Congress did carve out two exceptions—children of diplomats and children of indigenous people—because, during that era, those two groups did not have to follow U.S. laws or decisions of domestic courts.

Perhaps the most telling flaw in arguments against birthright citizenship is the fact that the U.S. Supreme Court over the course of a century recognized that being born in the country makes one a U.S. citizen. Those decisions include United States v. Wong Kim Ark (1898); Weedin v. Chin Bow (1927); Perkins v. Elg (1939); Nishikawa v. Dulles (1958); Afroyim v. Rusk (1967); Plyler v. Doe (1982); I.N.S. v. Rios-Pineda (1985). These decisions were arrived at by dozens of leading legal minds over the course of a century, addressing the full quotes of the legislative history mentioned above as well as the issues the Court faces today. Each correctly found the 14^th Amendment recognized birthright citizenship based solely on being born on U.S. soil. Indeed, the bulk of these decisions quoted the leading case on the matter, Wong Kim Ark and/orthe findings of the 39^th Congress when the 14^th Amendment was enacted. Not once did any of these decisions suggest inapplicability to those born of citizenship-ineligible or undocumented parents. The requirement of allegiance the Trump defenders argue for today is merely a revisionist reading of the legislative history of the 14^th Amendment motivated in large part by the desire to curb undocumented immigration. The solution to that problem should be the arduous undertaking of a constitutional amendment process, not an inaccurate retelling of the legislative history of the 14^th Amendment.

The Supreme Court will soon determine whether children who have done nothing wrong and who throughout this country’s history were recognized as citizens at birth will have to “bear the sins of their fathers.” The inequity of what the conservative anti-birthright citizenship scholars support amounts to nothing more than the resurrection of the arcane principle of corruption of blood, which in essence amounts to punishing children who have done nothing wrong. Such efforts were unequivocally and eloquently rejected by Justice Brennan in Plyler v. Doe, when he observed suchminors “can affect neither their parents’ conduct nor their own status.” The children of undocumented immigrants possess no agency in the decision to immigrate and no realistic ability to conform their conduct to the law. Holding them accountable for wrongs they did not choose—and could not control—is arguably heartless and unquestionably incompatible with the legislative history of the 14^th Amendment. Further, principles of separation of powers should thwart any man, including the President of the United States, from rewriting the Constitution by execute order. As the Supreme Court in Afroyim v. Rusk, found: “The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.”    

Ediberto Roman is Professor of Law & Director of Citizenship Initiatives at Florida International University.