Jed H. Shugerman, Boston University School of Law, has posted An Originalist Case for Birthright Citizenship of Unlawful Immigrants' Children: Early Restrictions on Chinese Immigrants as Categorical Context:
Some opponents of birthright citizenship for the children of "unlawful immigrants" make the following originalist claim about the Fourteenth Amendment: Even if the clause meant birthright citizenship, it applies today only to "lawful immigrants," because the category of "unlawful immigrant" or "illegal immigrant" did not exist in the 1860s, when the clause was written and ratified. This assertion was the main substantive argument about birthright citizenship offered by the Solicitor General in Trump v. CASA, and it is historically inaccurate.
To the contrary, the concept of "unlawful immigrants" existed in the 1850s-60s, and Americans ratified birthright citizenship without indicating any doubt that citizenship would extend to their children. This paper summarizes recent historical scholarship documenting a political movement against Chinese immigrants in western states and territories-especially California-leading to state restrictions against Chinese immigrants in the 1850s and 1860s, followed by early federal restrictions. These immigration restrictions were mostly a system of taxes, fees, and fines against immigrants, plus criminal penalties on U.S. citizens who engaged in illegal transit. These restrictions established a new legal regime with similar concepts of "unlawful" immigrants. They also demonstrated the rise of a powerful political movement that sought more direct exclusion, so that the nation had notice that the modern category of unlawful or illegal immigrants was more than just foreseeable; it was politically and conceptually on the table in the 1860s. In 1866, the congressional debates over the citizenship clause explicitly confirmed that the text would grant citizenship to Chinese immigrants, without raising a concern about this category of immigrants.
--Dan Ernst
