It is not uncommon for legal briefs to cite legal scholarship to support their arguments. While law professors cannot make law, they can refine and clarify the legal system’s understanding of the law. This has led some judges to lament that the legal academy’s writings aren’t more relevant to their jobs. “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria or something,” Chief Justice John Roberts once remarked.
The birthright citizenship cases reverse this trend, perhaps a little too aggressively. “A growing body of modern scholarship reinforces those views,” the Justice Department claimed. It exclusively cited writings by law professors published after the executive order was issued that generally seek to defend it outright or to at least attack those who criticize it and suggest the matter is more ambiguous than everyone thought. That, in turn, would invite the Supreme Court to “clarify” matters.
One such effort is by Ilan Wurman, a conservative law professor at the University of Minnesota. His initial foray into the matter was a New York Times column, co-signed with legal scholar Randy Barnett, titled “Trump Might Have a Case on Birthright Citizenship.” Its goal was fairly clear. “When they finally consider this question, the justices will find that the case for Mr. Trump’s order is stronger than his critics realize,” they argued.
The two men advanced what they called the “allegiance-for-protection theory” to claim that “subject to the jurisdiction” didn’t actually mean “subject to the jurisdiction” as someone would normally understand it. “Both the Lincoln administration and the Congress that proposed the Fourteenth Amendment held this allegiance-for-protection view, with this difference: In England, the allegiance expected of a subject was obedience to the sovereign monarch in return for his protection,” they claimed. “In the American Republic, where the people are sovereign, the allegiance expected of a citizen was obedience to the laws.”
Wurman received widespread criticism for the column, which prompted him to expand on his argument in a 93-page research paper. (Barnett did not join him in this subsequent endeavor.) It covers a breathtaking range of historical sources: a 1608 case by Lord Coke on whether Scottish people born after the Stuarts inherited the English throne were English subjects, safe-passage charters for medieval merchants, freedom suits by enslaved Black Americans before the Civil War, some international law treatises, a few other obscure cases, and so on. One gets the impression that Wurman is trying to bury his opponents through sheer volume.