"One important tool has been overlooked in determining the meaning of this amendment: the actions that were taken — and not taken — to challenge the qualifications of members of Congress, who must be citizens, around the time the amendment was ratified," wrote Times correspondent Adam Liptak.
A new study will be published next month in The Georgetown Law Journal Online examining the backgrounds of the 584 members who served in Congress from 1865 to 1871. That research found more than a dozen of them might not have been citizens under Trump’s interpretation of the 14th Amendment, but no one challenged their qualifications.
"That is, said Amanda Frost, a law professor at the University of Virginia and an author of the study, the constitutional equivalent of the dog that did not bark, which provided a crucial clue in a Sherlock Holmes story," Liptak wrote.
The 14th Amendment states that "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," while the Constitution requires members of the House of Representatives to have been citizens for at least seven years, and senators for at least nine.
“If there had been an original understanding that tracked the Trump administration’s executive order,” Frost told Liptak, “at least some of these people would have been challenged.”
Only one of the nine challenges filed against a senator's qualifications in the period around the 14th Amendment's ratification involved the citizenship issue related to Trump's interpretation of birthright citizenship, and that case doesn't support his position.
"Several Democratic senators claimed in 1870 that their new colleague from Mississippi, Hiram Rhodes Revels, the first Black man to serve in Congress, had not been a citizen for the required nine years," Liptak wrote. "They reasoned that the 14th Amendment had overturned Dred Scott, the 1857 Supreme Court decision that denied citizenship to the descendants of enslaved African Americans, just two years earlier and that therefore he would not be eligible for another seven."
"That argument failed," the correspondent added. "No one thought to challenge any other members on the ground that they were born to parents who were not citizens and who had not, under the law in place at the time, filed a declaration of intent to be naturalized."
"The consensus on the 14th Amendment’s citizenship clause has long been that everyone born in the United States automatically becomes a citizen with exceptions for those not subject to its jurisdiction, like diplomats and enemy troops," Liptak added.
Frost's research found there were many members of Congress around the time of the ratification of the 14th Amendment who wouldn't have met Trump's definition of a citizen, and she said that fact undercuts the president's arguments.
“If the executive order reflected the original public meaning, which is what the originalists say is relevant,” Frost said, “then somebody — a member of Congress, the opposing party, the losing candidate, a member of the public who had just listened to the ratification debates on the 14th Amendment, somebody — would have raised this.”
