Justice Barrett, Slavery, and Birthright Citizenship

I have previously written about how all of the Trump Administration’s rationales for denying birthright citizenship to children of undocumented immigrants born in the United States would also have required denying it to numerous freed slaves and their children. Thus, Trump’s position is at odds with the central purpose and original meaning of the Citizenship Clause. Interestingly, Justice Amy Coney Barrett raised this very issue in today’s Supreme Court oral argument in Trump v. Barbara, the birthright citizenship case. And Trump Solicitor General John Sauer gave an inaccurate response:

Barrett: General, you — you said in your reply brief that the children of slaves who were brought here unlawfully, you know, in — in — in defiance of laws forbidding the slave trade, would, in fact, be citizens….

And you can imagine that their parents were not only brought here in violation of United States law but were here against their will and so maybe felt allegiance to the countries where they were from. And you say that the purpose of the Fourteenth Amendment was to put all slaves on equal footing, newly freed slaves on equal footing, and so they would be citizens. But that’s not textual. So how do you — how do you get there?

Sauer: Sure. If you look at the nine — I think, if you look at the 19th century sources, what you see is that even though their entry may have been unlawful, 19th century antebellum law never treated their presence as unlawful. In fact, quite the opposite. One of the amici, in fact, points to, like, a Mississippi statute, which probably is replicated throughout the South before the Civil War, that says slaves in Mississippi have an indefeasible domicile in Mississippi.

Justice Barrett is getting at the point that if – as the administration argues – children of people who entered the US illegally are not “subject to the jurisdiction” of the United States (which they have to be to qualify for birthright citizenship), then the same is true of the many thousands of slaves brought in illegally after the US banned the slave trade in 1808, and their children. Similarly, as she suggests, if – as the administration claims – children of people who lack exclusive “allegiance” to the United States don’t qualify for birthright citizenship, then that must be true of the children of slaves brought in illegally. After all, these slaves likely felt little if any allegiance to the US authorities complicit in their enslavement, and under the administration’s logic, they and their children also were not entitled to birthright citizenship. I would add this point applies even to slaves imported legally. They, too, might well have felt or “owed” allegiance to the rulers of their homelands, and certainly had no allegiance to the United States, the nation that held them in bondage. I develop this point further in my Lawfare article.

SG Sauer’s answer is just factually wrong. Under federal law, the presence of illegally imported slaves in the United States was not legal. As legal scholars Paul Finkelman and Gabriel Chin showed in their pathbreaking 2021 article on this subject, illegally imported slaves were subject to detention and deportation, much like illegal migrants today.

Later in the same exchange, Sauer tries to get out of this hole by claiming that illegally imported slaves were “domiciled” in the United States. Justice Barrett seemed skeptical, and that skepticism is well-justified. As explained in my article, there is no meaningful sense in which illegally imported slaves were domiciled in the US that would not also apply to illegal migrants and their children.

In sum, Justice Barrett hit on an important issue. And it should lead her and the other justices to rule against Trump for this reason alone, even aside from all the many other reasons why his position is wrong.