Cornell Law Review Online

Birthright Citizenship and the Dunning School of Unoriginal Meanings

Evan D. Bernick, Paul Gowder & Anthony Michael Kreis

Associate Professor of Law, Northern Illinois University College of Law; Professor of Law, Northwestern University Pritzker School of Law; and Assistant Professor of Law, Georgia State University College of Law.  Authors’ names are listed in alphabetical order.  The authors thank Maggie Blackhawk, Christine Kexel Chabot, Jack Chin, Stella Burch Elias, Paul Lombardo, Ryan Rowberry, and Melissa Stewart for helpful suggestions.  The authors alone are responsible for the content of this Essay and any mistakes therein.

23 Jul 2025

This Essay critically surveys the recent debate surrounding birthright citizenship in the United States, particularly in light of arguments presented by legal scholars Randy Barnett, Kurt Lash, and Ilan Wurman.  Under the guise of “originalism,” Barnett, Lash, and Wurman propose an ahistorical, revisionist interpretation of the Fourteenth Amendment’s Citizenship Clause.  They suggest that the term “jurisdiction” should be understood as “allegiance,” seemingly to give the veneer of legitimacy to the Trump Administration’s view that the children of undocumented immigrants may not be American citizens.  This Essay argues that their efforts to radically redefine the historical understanding of citizenship are methodologically flawed and undermine core principles of constitutional law.  The critique exposes the inaccuracies and inconsistencies in their position and scrutinizes the scholarly merit of new theories of birthright citizenship that are wildly inconsistent with constitutional text, history, precedent, and unbroken tradition.  This Essay concludes by examining the professional responsibility of legal scholars to engage in rigorous, fact-based historical analysis rather than politically motivated reinterpretations that threaten to destabilize fundamental constitutional rights.

To read this Essay, please click here: Birthright Citizenship and the Dunning School of Unoriginal Meanings.