John McClean and His Dissent in Dred Scott

I’ve always been interested in dissents. Often they become the majority view years or decades later. Sometimes they are humorous; sometimes catty; sometimes sarcastic or even vicious; other times they ring so true simply because they are right. McLean’s dissent in the infamous Dred Scott decision is one of the right ones.

John McLean occupies a singular and somewhat contradictory space in American history as a figure who was simultaneously a pillar of the Supreme Court for over three decades and a perpetual seeker of the presidency. Born in New Jersey in 1785, McLean’s life began in extraordinarily humble origins, a sharp contrast to many of his colleagues on the bench who hailed from wealthy and established political dynasties. His family followed the typical path of the frontier, moving through Virginia and Kentucky before finally settling in Ohio in 1796. Because of this frontier upbringing, McLean lacked formal education for the vast majority of his youth, only beginning to study the classics at age sixteen. Despite these modest beginnings, his ascent was remarkably rapid. He apprenticed in a local court, studied law under notable regional figures, and eventually edited a newspaper before entering federal service. This self-made character defined much of his later jurisprudence and his tireless, if often criticized, ambition.

McLean’s political career was launched during the War of 1812 when he was elected to the U.S. House of Representatives at the age of twenty-eight. His administrative brilliance became evident early on, leading President James Monroe to appoint him Commissioner of the General Land Office and then Postmaster General. In this latter role, he transformed the postal service into a massive, efficient federal agency, but his principled stand against using the department’s vast appointment powers for political patronage brought him into direct conflict with Andrew Jackson. Jackson, frustrated by McLean’s refusal to fire competent postmasters to make room for political loyalists, famously “kicked him upstairs” to the Supreme Court in 1829. This appointment was less an honor and more a strategic maneuver by Jackson to remove a politically inconvenient but popular cabinet member from the executive branch.

Once on the bench, McLean remained a professional politician, a title that often shadowed his legal contributions. He was a perennial candidate for the presidency, seeking nominations from the Whigs, Anti-Masons, Free Soilers, and eventually the Republicans in nearly every election cycle between 1832 and 1860. His constant campaigning from the bench drew sharp rebukes from Chief Justice Roger B. Taney and others who believed it compromised the perceived neutrality of the Court. This political maneuvering was probably unparalleled in American history, as McLean frequently rationalized his political activities as being consistent with his judicial duty. Despite this distraction, McLean was an exceptionally hardworking justice, often traveling thousands of miles to fulfill his circuit court duties and writing hundreds of opinions that largely favored economic nationalism and federal power.

His judicial philosophy was deeply rooted in the belief that a strong national market was necessary for the country’s progress. He often clashed with the Taney Court’s states' rights leanings, particularly regarding the Commerce Clause. For example, he expressed a strong desire to protect vested property rights, arguing that the state should provide compensation for the loss of a franchise, reflecting his western perspective on the need for stable internal improvements. His personal life also reflected a complex set of moral values; though he often faced financial difficulties, he was known for his extensive acts of charity. Most notably, despite being in debt, he had purchased a family of slaves and emancipated them, and he later manumitted a servant in Washington rather than selling him for a significant profit.

This moderate antislavery stance reached its historic apex in the *Dred Scott v. Sandford* case of 1857. (For those not familiar with the case, I have a summary taken directly from McLean’s dissent in the appendix.) McLean’s role in this case was not merely as a dissenter but arguably as the catalyst for the broad, catastrophic ruling issued by Chief Justice Taney. When the Court initially considered the case, there was a possibility of a narrow ruling that would have avoided the larger constitutional questions of slavery in the territories and Black citizenship. However, McLean’s insistence on writing a full dissent that addressed these very issues forced the majority’s hand. Taney, wanting to settle the slavery question once and for all and perhaps hoping to undercut McLean’s potential 1860 presidential run, expanded his opinion to include the infamous declarations that Black people could never be citizens and that Congress had no power to ban slavery in federal territories.

The resulting dissents from McLean and Justice Benjamin Robbins Curtis provided the most significant judicial counter-narratives to the majority's opinion, though they approached the task with different focuses. Curtis provided a surgical, procedural dismantling of Taney’s logic, beginning with a challenge to the Court’s jurisdiction. He argued that if the majority truly believed the Circuit Court lacked jurisdiction because Scott was not a citizen, the Supreme Court had no authority to then rule on the merits of the case regarding the Missouri Compromise. Curtis’s most powerful historical contribution was his proof that African Americans were already citizens in five states—New Hampshire, Massachusetts, New York, New Jersey, and North Carolina—at the time the Constitution was adopted. He maintained that because these individuals were part of the “people of the United States” who ordained and established the Constitution, their descendants could not be categorically excluded from citizenship.

McLean, while supporting these jurisdictional points, focused more heavily on the principle of “positive law” and the collapse of judicial comity. He famously asserted that slavery is a local and municipal institution that can only exist by specific statute and does not follow a master into a free state. McLean was particularly scathing regarding the Supreme Court of Missouri’s decision to abandon its own twenty-eight-year-old precedent of “once free, always free.” He argued that rights to freedom that had vested for nearly three decades could not be repudiated with any semblance of justice simply because of a shift in local political sentiment. To illustrate this, McLean cited historical cases noting that once freedom vests by residence in a free jurisdiction, it cannot be reproduced by returning to a slave state.

The two justices also differed in their interpretation of the Constitution’s “Needful Rules and Regulations” clause. Curtis argued that the power to govern territories was a general one that necessarily included the power to prohibit slavery, a view supported by a long history of legislative acts beginning with the Northwest Ordinance. McLean went further, characterizing the majority's attempt to strip Congress of this power as a “Missouri question” that ignored the supremacy of federal law and the Illinois Constitution. He maintained that if a state court could disregard an act of Congress and the constitution of a neighboring sovereign state, then the laws afforded no protection to any human being. This foreshadowed much of the 14^th Amendment in its application of the bill of Rights to the states and right and privileges and the due process clauses. While Curtis’s dissent was a masterpiece of constitutional history, McLean’s was a defense of the law of nations and the moral necessity of maintaining a distinction between freedom as a natural right and slavery as a legal exception.

Physically, McLean was an imposing figure, described as a large man with an air of authority that matched his long tenure. Brady took his photograph; he was certainly a dour-looking man, but then most of them were then.) in Yet, as a jurist, he was often seen as safe rather than brilliant, a man whose long experience in public affairs made him a reliable, if not revolutionary, judge. He died in April 1861, just as the Civil War broke out, serving as a living link between the era of the Founders and the violent resolution of the slavery crisis he had spent decades trying to navigate. Though his political ambitions often clouded his reputation, his dissent in *Dred Scott* remains a landmark in American law, representing a moderate but firm refusal to allow the highest court in the land to turn the entire nation into a slave-holding republic.

Sources:

Curtis, Benjamin R., and John McLean. Dred Scott v. Sandford: The Dissents. Compiled by Doug Linder, Famous Trials, 2026. [Text of the two dissents.]

Finkelman, Paul. "John McLean: Moderate Abolitionist and Supreme Court Politician." Vanderbilt Law Review, vol. 62, no. 2, 2009, pp. 519-566. [This is an excellent and very readable summary of McLean’s life and the Dred Scott decision and ramification.]

Weisenburger, Francis P. The Life of John McLean: A Politician on the United States Supreme Court. Da Capo Press, 1971.

Appendix:

From McClean’s dissent: The parties agreed to the following facts: In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, Dr. Emerson took the plaintiff from the State of Missouri to the post of Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, Dr. Emerson removed the plaintiff from Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the territory Known as Upper Louisiana, acquired by the United States of France, and situate north of latitude thirty-six degrees thirty minutes north, and north of the State of Missouri. Dr. Emerson held the plaintiff in slavery, at Fort Snelling from the last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, Major Taliaferro took Harriet to Fort

Snelling, a military post situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave, at Fort Snelling, unto Dr. Emerson, who held her in slavery at that placeuntil the year 1838.

In the year 1836, the plaintiff and Harriet were married at Fort Snelling, with the consent of Dr. Emerson, who claimed to be their master and owner. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are

the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri at the military post called Jefferson Barracks. In the year 1838, Dr. Emerson removed the plaintiff and said Harriet and their daughter Eliza from Fort Snelling to the State of Missouri, where they have ever since resided. Before the commencement of the suit, Dr. Emerson sold and conveyed the plaintiff, Harriet, Eliza, and Lizzie, to the defendant as slaves, and he has ever since claimed to hold them as slaves. At the times mentioned in the plaintiff's declaration, the defendant, claiming to be the owner, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than he might lawfully do if they were of right his slaves at such times.

As in real estate, location, location, location. Illinois was a free state and Scott argued once free, always free. He lost , as did the Missouri Compromise, resulting in a major justification for the Civil War.

 

Review: Working Fire: The Making of a Fireman by Zac Ungar

I suppose all of us have envied firemen.  Driving those big rigs with sirens wailing moving traffic, i.e. parting the waters, out of the way, and then fighting fires and saving lives. I read all the books I find on firefighting, Dennis Smith's memoir Report from Engine Co. 82 [my review] and Sean Flynn's 3000 Degrees [my review] are memorable.  I have been unable to read memoirs connected to 9/11, however.  Those all seem a bit raw, yet.

Working Fire is a compelling memoir that offers a vivid and often unsentimental look at the making of a firefighter. Zac Unger’s account is effective because it does not present firefighting as a glamorous or effortless calling. Instead, he shows it as a profession built on repetition, discipline, physical endurance, and trust. From the beginning, the book emphasizes the intensity of the work and the way firefighters must learn to function under pressure. Unger’s descriptions of the job are both immediate and reflective, which gives the memoir real depth. His writing captures not only what firefighting looks like, but what it feels like to enter a world where “there are no black belts in this business”. Oakland at that time was notoriously violent with more than its share of fires. As a child it had been off limits. "The part of Oakland I knew was effectively the southern tip of Berkeley; the son of a doctor and an academic, I’d always faced directly toward the university instead of looking over my shoulder at the gritty industrial world that was the true Oakland." Yet it was his mother who suggested he look at firefighting as a career.

One of the strongest parts of the memoir is Unger’s honesty about his own development. He does not pretend to be naturally suited for the work at first, and that makes his eventual progress more convincing. He shows the reader how embarrassing mistakes, physical exhaustion, and fear are all part of becoming competent. At one point, he reflects that “fire is chaos given form”, a line that captures both the unpredictability of the job and the mindset needed to survive it. This idea runs throughout the memoir: firefighting is not about mastering chaos completely, but about learning how to move through it with enough discipline and judgment to help others.

There is a certain dark comedy in the way firefighters operate. At the School of Medicine, my first library job,  our maintenance chief was so terrified of the fire department’s "path of destruction" that he ordered us to contact him before even thinking about dialing 911 if there ever were a fire. He wasn't wrong. Firefighters are essentially a highly trained wrecking crew. During a welfare check early in Ungar’s career, the team found a naked man stuck to his sink drain. By the time they freed his finger, the bathroom was in ruins. As Reggie hoisted his crowbars, he summed up the profession perfectly: "We messed that place up good... he'll never call us again."

"Firefighters aren't movers or construction workers.  We We’re not really licensed to do anything in particular, and we don’t guarantee our work. It’s mostly about the action; cleanup is for someone else." Note that fire trucks carry no construction tools, only those used for dismantling.

 Unger also succeeds in portraying the culture of the firehouse. The firefighters in the book are competitive, blunt, and sometimes rough, but they are also deeply connected to one another through shared risk. He captures the pride firefighters feel in their work, even in routine moments. His description of the rig being washed and polished shows how much symbolism surrounds the profession; the engine is not just equipment, but a public sign of readiness and responsibility. In one especially memorable passage, he describes the feeling of riding a fire engine as if it were “like flying”, which reveals how excitement and duty are intertwined in his experience of the job. He also notes that “fighting fire is fun”, a brief but revealing phrase that captures the strange mix of danger and exhilaration that draws firefighters to the work. Later, when discussing the limits of experience, he observes that “there are no black belts in this business”, which reinforces the idea that the job always demands humility and continued learning.

The memoir is notable for its emotional range. Unger can write with humor, but he also allows space for fear, humility, and tenderness. He shows how the demands of firefighting affect his personal life, especially his marriage and his sense of identity. The book is not only about learning a trade; it is also about becoming the kind of person who can live with danger, uncertainty, and responsibility. That broader human story makes the memoir more than a professional account. It becomes a story about maturity, belonging, and the price of commitment.

Another major strength of Working Fire is its realism. Unger does not exaggerate his own heroism, and he does not flatten the fire service into clichés. Instead, he shows the daily work, the procedures, the hierarchy, and the small humiliations that come with learning a difficult job. He makes clear that firefighting depends on mutual reliance. Nobody succeeds alone, and the book repeatedly reinforces the idea that survival depends on staying close to the team. This gives the book a strong moral center, because the central values are not glory or individual achievement, but competence, loyalty, and responsibility.

Overall, Working Fire is a well-written and thoughtful memoir that offers both action and insight. It is engaging because of its vivid scenes and fast-moving narrative, but it is memorable because of its honesty, self-deprecating humor, and self-awareness. Unger shows that becoming a firefighter is not just about learning how to fight fires; it is about learning how to trust others, accept fear, and grow into a role that carries real consequences. That combination of vivid storytelling and serious reflection makes the book a strong and rewarding read. It's also really fun to learn the difference between a "truck" and an "engine" and why alone neither can put out a fire.

 

Review: Oath Betrayed: Torture, Medical Complicity, and the War on Terror by Steven H. Miles

 I stumbled across a very disturbing movie, "In the Name of the Father", concerning the Guildford Four (more about them in a later post.) The issue of torture came up which led me to this book. Remember Abu Ghraib?

Steven H. Miles’s Oath Betrayed is a deeply disturbing and meticulously researched investigation into one of the most controversial aspects of the War on Terror: the treatment of prisoners and the role that medical professionals played in that system. Written by a physician and expert in medical ethics, the book goes beyond documenting abuse—it confronts the moral collapse that occurs when institutions designed to heal instead become entangled in harm.

At its core, the book is driven by a simple but powerful question: where were the doctors and nurses when prisoners were being abused? This question serves as both a moral challenge and a framework for Miles’s argument. He demonstrates that medical personnel were not absent observers; rather, they were often present, aware, and sometimes actively involved. In certain cases, they monitored interrogations, provided guidance on how much stress or pain a detainee could endure, and failed to report clear signs of abuse. This complicity is especially troubling because it represents a direct violation of the ethical foundations of medicine, including the principle of “do no harm.”

Miles’s approach is heavily evidence-based, which is one of the book’s greatest strengths. He draws on a vast body of primary sources, including declassified government documents, military investigations, FBI reports, autopsy findings, and medical records. These sources reveal a pattern of abuse that was far more widespread and systematic than initially acknowledged by officials. The narrative that emerges challenges the idea that the abuses at places like Abu Ghraib were isolated incidents caused by a few “bad apples.” Instead, Miles argues that they were part of a broader institutional failure involving multiple levels of command and responsibility.

The book is organized in a way that gradually builds this argument. Early chapters define torture and examine its historical and legal context, emphasizing that torture is not just a collection of techniques but a social institution supported by policies, training, and cultural acceptance. Later sections move into detailed case studies of interrogation practices, prisoner deaths, medical neglect, and the silence of those who witnessed these events. These case studies are often difficult to read, as they describe physical and psychological abuse in stark detail, but they are essential in illustrating the human cost of the policies being examined.

One of the most compelling aspects of Oath Betrayed is its focus on the intersection between medicine and power. Miles shows how medical knowledge was used not to heal but to facilitate suffering. For example, health professionals sometimes advised interrogators on how to avoid causing permanent injury while still inflicting significant pain or distress. In other cases, they monitored detainees to ensure they remained alive and conscious during harsh interrogations. This use of medical expertise represents a profound ethical distortion, turning healers into instruments of coercion.

Miles also explores the concept of silence—both individual and institutional. Many medical personnel and other professionals who were aware of abuse failed to report it, either out of fear, pressure, or a sense of loyalty to their chain of command. This silence allowed abusive practices to continue and even expand. The book suggests that this failure to speak out is as significant as direct participation, highlighting the importance of moral courage in professional settings.

Another important theme is the broader societal context that made these actions possible. Miles argues that torture does not occur in a vacuum; it is enabled by political decisions, legal justifications, and public attitudes. He critiques the ways in which language was used to obscure reality—terms like “enhanced interrogation” and “detainee” softened the perception of what was actually happening. By reframing torture in bureaucratic or technical terms, officials were able to distance themselves from its moral implications.

The book also addresses common justifications for torture, particularly the “ticking time bomb” scenario—the idea that extreme measures may be necessary to prevent imminent harm. Miles challenges this argument by pointing out that such scenarios are largely hypothetical and rarely reflect real-world conditions. He argues that torture is not only morally wrong but also ineffective, often producing unreliable information and damaging long-term intelligence efforts. In this way, the book combines ethical reasoning with practical analysis, showing that torture fails on multiple levels.

While Oath Betrayed is undeniably powerful, it is not an easy read. The level of detail and the volume of evidence can make the book feel dense and, at times, overwhelming. Miles writes in a clear but serious tone, and the subject matter itself is emotionally heavy. Readers may find themselves needing to pause and reflect on what they have read, particularly during sections that describe specific instances of abuse or neglect.

Additionally, the book is unapologetically critical in its perspective. Miles does not spend much time exploring arguments in favor of the policies he condemns, which may leave some readers wanting a more balanced discussion. However, this focus is also part of the book’s strength—it is not intended to be neutral but to expose wrongdoing and provoke moral reflection.

Ultimately, Oath Betrayed is a profoundly important work that raises difficult but necessary questions about ethics, responsibility, and the limits of power. It challenges readers to consider not only what happened during the War on Terror but also how such actions became possible in a society that claims to value human rights and the rule of law. The book serves as a reminder that professional ethics are not optional, even—or especially—in times of crisis.

Miles’s message extends beyond the specific events he describes. He calls on medical professionals, policymakers, and citizens alike to recognize their roles in upholding ethical standards. By documenting these failures in such detail, he hopes to prevent them from happening again.

In conclusion, Oath Betrayed is a sobering and thought-provoking examination of one of the darkest chapters in recent history. It is a challenging read, but also an essential one. Through its careful research and moral clarity, the book forces readers to confront uncomfortable truths and to reflect on the kind of society they want to be part of. Written in 2006, I suspect Dr. Miles hasn't seen much improvement.

He wrote The Torture Doctors in 2020, but that will have to go on my "to read" list. A companion book that I read several years ago is 

The Nazi Doctors: Medical Killing and the Psychology of Genocide by Robert Jay Lifton.

4/13/26 Update:  The Balkinization Blog has an extensive list of articles and essays related to torture and civil liberties as part of the War on Terror: https://balkin.blogspot.com/2006/12/anti-torture-memos.html

 

 

Many thoughts on Trump v. Barbara: The Birthright Case, Or, Are Indians really natives?

 Preface.  Don't read this. Go to the oral argument transcripts and follow along as you listen to the arguments.  Then read a couple of the amici briefs (they are short and pithy.) I've tried to summarize from my POV, but better to make up your own mind, and be informed.  Transcript of oral arguments in Barbara v Trump.  You can listen to the actual arguments (riveting - no joke) here.  

I have always been fascinated by the 14th Amendment and its primary author John Bingham.  It made the Constitution better and was intended to solidify the rights and privileges of former slaves, making them all citizens of both federal and state.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

It's beautiful in its simplicity. Trump is trying to dismantle it not just by taking citizenship away from those whose parents might not be citizens, but also by denying due process and equal protection to those who might claim it. Trump is not alone as FDR and the Supreme Court denied due process and equal protection to Japanese Americans (not German Americans, it should be noted) [1]

Fortunately, the courts have pushed back.  What also makes this case interesting is the government is asking for a living constitutionalist interpretation, i.e. times have changed, we need to ignore original intent and make new law irrespective of the 14th Amendment and the 1952 reaffirmation of that amendment through statute. Roberts had the best comback.  Saur said, it's a new world, to which Roberts replied, "a new world; not a new Constitution."[2]

It was still necessary for the Amendment to be enforced and that was accomplished in 1898. The landmark Supreme Court case that established the precedent for birthright citizenship under the Fourteenth Amendment is United States v. Wong Kim Ark .

In a 6-2 decision, the Court ruled that Wong Kim Ark, who was born in San Francisco to parents of Chinese descent, was a U.S. citizen by birth under the Citizenship Clause of the Fourteenth Amendment.This decision affirmed the principle of jus soli (right of the soil), confirming that the Fourteenth Amendment guarantees citizenship to nearly all individuals born within the United States, regardless of their parents' citizenship or immigration status.

The current case at the center of the birthright citizenship debate is Trump v Barbara which addresses an executive order issued by President Donald Trump on January 20, 2025, aimed at ending automatic citizenship for children born in the United States to non-citizen parents. The Supreme Court heard oral arguments for this case today, April 1, 2026, an event made particularly historic by the President’s personal attendance in the courtroom. At the heart of the legal battle is the interpretation of the Fourteenth Amendment's Citizenship Clause and whether the phrase "subject to the jurisdiction thereof" permits the government to exclude children based on their parents' legal status. While the administration seeks to narrow the definition of birthright citizenship, challengers maintain that the 1898 precedent in United States v. Wong Kim Ark clearly guarantees citizenship to nearly everyone born on U.S. soil. Lower courts have already blocked the order, and a final decision from the Supreme Court is anticipated by early summer 2026, with early reports from today's session suggesting several justices expressed skepticism toward the administration’s arguments.

Solicitor General D. John Sauer, representing the administration, argued that the phrase "subject to the jurisdiction thereof" requires parents to be "domiciled" in the United States—meaning they must have established a permanent home here—to confer citizenship on their children.He contended that the 1898 Wong Kim Ark decision supports this focus on domicile, a point he used to suggest that the modern interpretation of birthright citizenship has become overly broad.

The justices, including those appointed by President Trump, expressed deep skepticism toward the administration’s position.Chief Justice John Roberts and Justice Elena Kagan both questioned why the government would rely on what Kagan described as "pretty obscure sources" to redefine a constitutional provision that has been interpreted consistently for over a century.Justice Ketanji Brown Jackson questioned the practical implementation of the order, asking how the government would feasibly determine the citizenship status of a newborn.Justice Amy Coney Barrett similarly challenged the solicitor general, noting that the administration's argument lacked a strong textual basis in the Fourteenth Amendment.

Conversely, the justices also scrutinized the arguments presented by Cecillia Wang, the ACLU legal director representing the plaintiffs.Several justices, including Justice Samuel Alito, questioned how the plaintiffs could dismiss the concept of "domicile" as irrelevant given its frequent mention in the Wong Kim Ark opinion.Wang maintained that the Fourteenth Amendment established a "bright line" rule that has long ensured stability, arguing that adopting the administration’s theory would invite government manipulation and place the citizenship of millions of Americans in jeopardy.President Trump attended the session as a silent observer for over an hour, leaving shortly after the government’s opening defense concluded, while the court is expected to deliver its final ruling by late June or early July 2026.

I just love reading opinions and especially glancing through the amici briefs. (These are literally "friends" briefs from organizations or even individuals who are not party to the suit, but have a strong interest in the issues raised and the outcome. There were several I found to be quite interesting. The Cato Institute, a libertarian group was against any reinterpretation of the birthright clause [3] as was a faith-based group [4]. Two originalist scholars from NIU made the argument for not reinterpretating the 14th [5] but there was the usual, how can I put it, anti-Christian rhetoric from a Christian Nationalist group that foresaw a spate of horribles should Trump be denied his interpretation. [6]

The America First Foundation [7] was similarly concerned that children of immigrants would not have the appropriate "allegiance" to the United States.This amicus brief argues that the 14th Amendment's Citizenship Clause requires two conditions for birthright citizenship — not just birth on U.S. soil (residence), but also allegiance to the United States. Drawing heavily on English common law, particularly Calvin's Case (1608) and United States v. Wong Kim Ark (1898), the brief contends that the phrase "subject to the jurisdiction thereof" was always understood to encode an allegiance requirement, not merely regulatory jurisdiction. It argues that children of illegal aliens cannot satisfy this allegiance condition because their parents, by virtue of having broken U.S. immigration law, are in a state of ongoing defiance — essentially "alien enemies" rather than "alien friends" under common law — and cannot pass along to their children an allegiance they themselves do not possess. The brief further argues that since illegal immigration as a concept did not exist when the 14th Amendment was ratified in 1868, the drafters never contemplated extending birthright citizenship to this category of persons, and the Court should therefore not presume it was intended.  Citing the Wong Kim Ark decision seemed a bit strange to me, as did their inclusion of "children of Native Americans " with the non-allegiance cohort. I wonder if they considered the natural outcome of the allegiance requirement, which is what do you do with people who have dual citizenship and how do you measure allegiance?

Equally enthusiastic to the Trump interpretation was the Family Coalition Florida that focused on those dangerous immigrants who would breed like rabbits and overrun us good white folk. Well, that's my translation of " that is precisely what the Constitution would become if en masse births by illegal aliens and transients in the United States were to trigger citizenship without restraint, limit, or regulation. Such unrestrained birthright citizenship is a Trojan Horse of religious intolerance – a runaway security nightmare which undermines Congressional control of immigration with a limitless and unrestrained influx of cultures alien to basic principles of free speech and religious tolerance and openly hostile to the United States.[6]  Goodness.

The amicus brief submitted by originalist scholars Evan D. Bernick and Jed H. Shugerman at NIU argues that the Fourteenth Amendment’s Citizenship Clause was originally understood to guarantee citizenship to nearly all children born on U.S. soil, including those of transient or undocumented parents. The authors assert that the term "jurisdiction" at the time of ratification referred simply to the power to govern; therefore, anyone present in the country and subject to its laws falls under U.S. jurisdiction. Indians were excluded as not being within the jurisdiction of the United States.  They were not to achieve citizenship until 1924. [see 8] They contend that the Trump administration’s 2025 executive order relies on "post-hoc" evidence and private correspondence that does not reflect the public meaning of the Constitution as it was understood in 1868.

The brief further supports this "bright-line" rule by tracing birthright citizenship back to English common law, specifically Calvin’s Case, which established that children of aliens born within the sovereign's dominion were natural-born subjects. The scholars point out that during the 1866 debates, members of Congress explicitly confirmed that the children of "temporary sojourners" and groups like the Roma and Chinese immigrants would be considered citizens. Finally, they warn that the government's current interpretation—requiring parental domicile—would contradict the Amendment's core purpose of repudiating the Dred Scott decision and could retroactively cast doubt on the citizenship of descendants of enslaved people who were brought to the country after the federal ban on the slave trade.

Amada Taylor pointed out that the questions coming from Justice Barrett were intriguing and useful because of her civil procedure background The administration's argument about the importance of domicile would lead to very tricky legal disputes over just what constitutes a "domicile". She thought that Alito might be more sympathetic to the originalist position because his parents were immigrants and if Trump's position were to prevail and be applied retroactively, he could possibly lose his citizenship. That was why the question about whether the administration was applying their interpretation prospectively or retrospectively was really important.  Of course, if Trump prevailed there is nothing to stop him or a future president from applying it retrospectively which would lead to chaos.

To make things even more interesting, the justices will convene to a room with a portrait of Justice Harlan, the Great Dissenter, famously so named for his great dissent in Plessy v Ferguson, but who also dissented in Wong Kim Ark, a dissent he later thought better of in a speech, admitting he was wrong. [9]

Citations

[1]  In Korematsu v. United States (1944), the Supreme Court faced the collision of President Franklin D. Roosevelt’s Executive Order 9066—which authorized the mass incarceration of Japanese Americans during World War II—and the constitutional guarantees of the Fourteenth Amendment. Despite the Amendment's Equal Protection Clause, which prohibits state-sanctioned discrimination, the Court’s 6-3 majority deferred to the government’s claim of "military necessity," ruling that while racial classifications are inherently suspect and subject to the most rigid scrutiny, they could be upheld during extreme wartime exigencies. Trump has used a similar "wartime" argument. This decision, which justified the forced removal of citizens based solely on their ancestry, remained a stain on American jurisprudence for decades until it was finally and explicitly repudiated by the Supreme Court in 2018, confirming that the ruling was gravely wrong and holds no place in modern constitutional law.

[2] Enacted as part of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1401 is the federal statute that defines who is automatically a citizen of the United States at birth. Its most fundamental provision declares that any person born on U.S. soil and subject to its jurisdiction is a citizen from birth — essentially codifying the 14th Amendment's Citizenship Clause into statutory law. Beyond that, the statute extends birthright citizenship to several other categories: children born abroad to two U.S. citizen parents (where at least one parent has resided in the U.S.), children born abroad to one citizen parent and one non-citizen parent (where the citizen parent meets certain physical presence requirements), children born in U.S. territories and outlying possessions, members of Native American and aboriginal tribes born in the U.S., and children of certain U.S. nationals. Notably, the statute does not use the words "mother," "father," "parent," or "domicile" in its core birthright provision — a fact central to current legal debates — and its language has been understood since its enactment to confer citizenship based on the place of birth, not the immigration status of the parents.  Note that Native Americans were not granted citizenship until 1924 when President Calvin Coolidge on June 2, 1924, signed the Snyder Act into law This act declared all non-citizen Native Americans born within the territorial limits of the United States to be U.S. citizens. Regarding Native Americans and "Subject to the Jurisdiction of" https://nyulawreview.org/online-features/subject-to-the-jurisdiction-thereof-the-indian-law-context/#:~:text=But%20the%20%E2%80%9Canomalous%E2%80%9D%20and%20%E2%80%9C,foreign%20sovereignty%20and%20territory%20outside

[3]Cato Institute: https://www.supremecourt.gov/DocketPDF/25/25-365/399364/20260226123726552_Trump%20v.%20Barbara_Final.pdf

[4]Faith-Based Organizations: https://www.supremecourt.gov/DocketPDF/25/25-365/399431/20260226163518514_25-365%20Amicus%20Brief.pdf

[5]Originalist Scholars: https://www.supremecourt.gov/DocketPDF/25/25-365/399436/20260226164037333_Bernick-Shugerman%20Amici%20FINAL%20PDFA.pdf

[6] Family Coalition Florida: https://www.supremecourt.gov/DocketPDF/25/25-365/392815/20260127152304521_25-365%20Amicus%20Brief.pdf

[7] America First Foundation:https://www.supremecourt.gov/DocketPDF/25/25-365/392775/20260127103719332_25-365%20Amicus%20Brief.pdf

[8] Exclusion was rooted in a 19th-century legal theory that viewed Native American tribes as "quasi-foreign nations." When the Fourteenth Amendment was drafted in 1866, the phrase "subject to the jurisdiction thereof" was intended to mean a "full and complete" allegiance to the United States.  This was the hook that the Faith-based group hung their argument on.  Key architects of the amendment, such as Senator Jacob Howard, argued that because Native Americans owed their primary political allegiance to their tribes, they were not fully under U.S. jurisdiction in the way the amendment required.

This theory was formally upheld in the 1884 case Elk v. Wilkins, where the Supreme Court ruled that a Native American born into a tribe was not a U.S. citizen at birth.The Court reasoned that tribes were "distinct political communities" and that tribal members were essentially born as subjects of an alien power, much like the children of foreign diplomats. As a result, even if an individual like John Elk voluntarily separated from his tribe and moved to a U.S. city, he did not automatically become a citizen under the Fourteenth Amendment. This jurisdictional barrier remained in place until Congress exercised its authority to grant broad citizenship via the Indian Citizenship Act of 1924. Earl M. Maltz, The Fourteenth Amendment and Native American Citizenship, 17 CONST. COMMENT. 555 (2000). Available at: https://scholarship.law.umn.edu/concomm/289

[9] "Suppose an English father and mother went down to Hot Springs to get rid of the gout, or rheumatism, and while he is there, there is a child born. Now, he goes back to England. Is that child a citizen of the United States... by the mere accident of his birth? My belief was never intended to embrace everybody... but of course, I am wrong because only the Chief Justice and myself held these views, and as the majority decided the other way, we must believe that we were wrong."  Justice Harlan's recanting (?) his dissent.

Other Resources of Interest

 UC Davis Letters & Science Magazine — "A Brief History of Citizenship in the 14th Amendment to the U.S. Constitution" https://lettersandsciencemag.ucdavis.edu/self-society/brief-history-citizenship-14th-amendment-us-constitution

SCOTUSblog — "Birthright citizenship: why the text, history, and structure of a landmark 1952 statute doom Trump's executive order"  https://www.scotusblog.com/2026/03/birthright-citizenship-why-the-text-history-and-structure-of-a-landmark-1952-statute-doom-trumps-executive-order-14160/

Akhil and Vikram Amar & Jason Mazzone, Birthright citizenship: why the text, history, and structure of a landmark 1952 statute doom Trump’s executive order, SCOTUSblog (Mar. 19, 2026, 3:10 PM), https://www.scotusblog.com/2026/03/birthright-citizenship-why-the-text-history-and-structure-of-a-landmark-1952-statute-doom-trumps-executive-order-14160/ 

Magliocca, Gerard N. American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. NYU P, 2016.  

United States v. Wong Kim Ark, 169 U.S. 649 (1898) https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918088

For SCOTUS junkies only: Adam Feldman, What oral argument told us in the birthright citizenship case, SCOTUSblog (Apr. 3, 2026, 12:00 PM), https://www.scotusblog.com/2026/04/what-oral-argument-told-us-in-the-birthright-citizenship-case/   A data analysis of the justices questions by Adam Feldman.

Summary of Justices' questions:

• Chief Justice Roberts: Roberts questioned the leap from narrow historical exceptions (such as children of foreign diplomats or invading enemies) to a broad exclusion of children born to illegal immigrants. He sought clarity on how the government's "domicile-based theory" of jurisdiction aligned with the text of the Citizenship Clause.

• Justice Thomas: Thomas focused on the historical context, specifically how the Citizenship Clause was intended to correct the Dred Scott decision. He also inquired about the relationship between national and state citizenship and whether the term "reside" in the Constitution should be synonymous with "domicile".  His was also the lowest word count.

• Justice Sotomayor: Sotomayor emphasized that the 14th Amendment's proponents intended for a universal rule of citizenship for all born in the U.S., regardless of their parents' status. She expressed concern that the government's theory could lead to "unnaturalizing" individuals born in the U.S. to undocumented residents.

• Justice Alito: Alito proposed that when a broad "general rule" like birthright citizenship is established, it should naturally apply to future circumstances, such as illegal immigration, even if not explicitly contemplated at the time of adoption. He used a "microwave oven" analogy to illustrate how old laws adapt to new situations.

• Justice Kagan: Kagan challenged the government's reliance on "esoteric" and "obscure" sources to define jurisdiction through allegiance and domicile. She argued that the plain meaning of being "subject to the jurisdiction" of the U.S. is simply being subject to its laws and authority.

• Justice Gorsuch: Gorsuch noted a lack of evidence that the Framers of the 14th Amendment focused on domicile or allegiance in their debates. He questioned whether the government was seeking a definitive constitutional ruling rather than a narrower statutory interpretation.

• Justice Jackson: Jackson suggested that the 14th Amendment was specifically designed to move away from allowing Congress or the states to determine who is a citizen. She also posited that historical emphasis on "domicile" in precedents like Wong Kim Ark might have been included for public optics rather than as a strict legal requirement.  Jackson and Barret almost tied for the most questions, or longest, anyway.  Highest word count.

• Justice Barrett: Barrett highlighted that the common law traditionally focused on the child's place of birth, whereas the government’s theory shifted the focus to the parents' intent and allegiance. She raised practical concerns about how the government would adjudicate citizenship for "foundlings" (children of unknown parents) or determine a parent's "intent to stay" at the moment of birth.

• Justice Kavanaugh: Kavanaugh questioned why the government was not asking to overrule Wong Kim Ark if they believed its current application was incorrect. He also explored the principle of constitutional avoidance, wondering if the case could be resolved on statutory grounds rather than making a major constitutional ruling.