How To Teach Trump v. Barbara?

Trump v. Barbara is one of the Supreme Court’s most consequential decisions in recent memory. Most landmark decisions evolved as part of a long-line of cases. Slaughter followed from Seila Law which followed from Justice Scalia’s Morrison dissent. Dobbs followed from Casey which followed from Roe. Students for Fair Admission followed from Grutter which followed from Bakke. On rare occasion, the Supreme Court decides an issue in an open field. Heller was one such case where the Supreme Court had to establish an entire new area of jurisprudence. Barbara is another. Both cases were based on text, history, and tradition, and both cases split 5-4 on the constitutional question.

The challenge of teaching Barbara is significant. There are many difficult pedagogical choices. First, where should it even go in the curriculum? It doesn’t really fit in with discussions of the Fourteenth Amendment for the Due Process or Equal Protection Clauses. Second, how much of the case should be included? The entire decision stretched nearly 200 pages, and the dissents were more than triple the length of the majority opinion. Third, which issues should be covered? The history sweeps throughout different eras: the English common law, antebellum America, the Reconstruction period, and the late nineteenth century. Fourth, is it still necessary to cover Wong Kim Ark? According to the Chief Justice, the majority opinion flowed naturally from that precedent; the dissent countered that Wong Kim Ark doe not control. Fifth, should the assignment forward-looking? As efforts to restrict birthright citizenship continue.

Randy Barnett and I struggled through these questions for some time. Ultimately, we reached an arrangement to divide the case into six excerpts that stretch about sixty pages to be taught over two classes. But if a professor so chooses, three excerpts, spanning thirty pages, can be taught in a single class. The decision of which excerpts to assign will turn on what the professor seeks to cover. And we placed the case at the end of our chapter on the Fourteenth Amendment, immediately after Plessy. That was the most logical spot to include the decision.

You can download the excerpt from our supplement here. We explain the breakdown as follows:

The decision in Barbara stretched nearly two-hundred pages. All of the opinions offer a deep historical analysis of citizenship stretching back to seventeenth century England. To make the case more digestible, we have split up Barbara into six discrete parts. The first presents the differing conceptions of the majority and dissenting Justices; the next three present different categories of evidence bearing on the meaning of “subject to the jurisdiction”; the fifth posits a statutory rather than constitutional outcome of the case.

• The first excerpt presents the majority’s and dissenters’ rival conceptions of “subject to the jurisdiction.” In particular, the majority opinion held that the Fourteenth Amendment adopted a modified version of the English common law rule of birthright citizenship. The dissenters argued that America charted a different course.
• The second, third, and fourth excerpts consider different types of evidence of the original meaning of the Citizenship Clause: (a) analysis of the text; (b) the context provided by the citizenship clause in the Civil Rights Act of 1866; (c) the congressional debate over the citizenship clause of the Fourteenth Amendmentment; and (d) post- ratification practice by the executive branch.
• The fifth excerpt provides a summary of the judiciary’s interpretation of the Citizenship Clause — in particular the Supreme Court’s decision in United States v. Wong Kim Ark (1898), a decision from three decades after ratification. Before this excerpt, we reproduce a portion of Wong Kim Ark, so that you can judge what the case decided before reading the Justices’ competing characterizations of it.
• In the sixth and final excerpt, Justice Kavanaugh takes an entirely different tack. On the one hand, he joins the other dissenters in rejecting the majority’s interpretation of the Fourteenth Amendment. Justice Kavanaugh maintains that the President’s executive orders violate the original meaning of the Constitution. But on the other hand, all agree that the Naturalization Clause empowers Congress to expand citizenship beyond the original meaning of the Citizenship Clause. Justice Kavanaugh contends that Congress did exactly this when it enacted the Immigration and Nationality Act of 1952. On his analysis, then Congress may cut back on its own expansion of citizenship by enacting a statute returning to the original meaning of the Fourteenth Amendment. No other Justice accepted Justice Kavanaugh’s reading of the 1952 statute. We include Justice Thomas’s brief rebuttal.

I welcome feedback and suggestions of how to teach the case.