Stop Navel-Gazing and Actually Read: A Response to Randy Barnett & Ilan Wurman's Birthright Citizenship NYT Op-Ed

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Pretend this is a photo of the 14th Amendment. Photo by Us Wah on Unsplash

American Bar Association President William R. Bay recently put out this call by the ABA:

“We urge every attorney to join us and insist that our government, a government of the people, follow the law. It is part of the oath we took when we became lawyers.”

In that call, the ABA points explicitly to recent attacks on birthright citizenship (among other attacks) “wide-scale affronts to the rule of law itself.”

On January 20, 2025, the Trump Administration issued an executive order declaring that children born in the United States would no longer be citizens:

“(1) when that person’s mother was unlawfully present in the United States, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

On February 6, 2025, U.S. District Judge John Coughenour, a federal judge in Seattle (a Reagan appointee), issued a permanent injunction against the Executive Order. When issuing his ruling, Judge Coughenour stated:

"It has become ever more apparent that to our president the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain."

“Nevertheless, in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow.”

Judge Coughenour’s ruling is scathing, stating that the Citizenship Clause is clear. The Citizenship Clause states:

“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."

Enter Barnett & Wurman, who evidently looked at the Constitution and said this:

So, you don’t have to read the op-ed; I did it via a gift link (thank you for the highly cursed gift). Barnett & Wurman start by stating that the Court has “never”—and in fact “must”—consider the 14th Amendment’s “original purpose and the common law principle of birthright citizenship, which informs the meaning of the text.” They claim that the original purpose and the common law principle are rooted in the “idea of social compact.” Prior to his op-ed, Wurman stated:

What is this entire literature that we have all awaited for so long and that no other attorney has been so brave and intelligent enough, until this current moment, to advance in the courts?

There is not much, but one source of particular note they rely on is a letter. This Attorney General Opinion Letter is from Lincoln’s Attorney General, Edward Bates, written on November 29, 1862, to Secretary of the Treasure Salmon P. Chase.

Barnett & Wurman quote the letter¹ where it states:

“The Constitution uses the word ‘citizen’ only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other.”

Even if we determined the law based on Opinion Letters by an Attorney General who died over 150 years ago, if you actually read the letter, it does not support Barnett & Wurman.