Justice John Marshall Harlan and Birth Tourism

One of the more unexpected aspects of the Birthright Citizenship case was the return of Justice John Marshall Harlan. But I think a more careful study of Harlan’s lectures suggests that at least part of Trump’s order may survive: specifically, the status of children whose mother is in the United States on a tourist or other limited visa. I discuss this question in a new Civitas Outlook essay. Here is the introduction:

The conventional wisdom is that the Supreme Court will strike down President Trump’s entire birthright citizenship order. In 2018, I wrote that children of illegal aliens are citizens at birth. I’ll admit that recent scholarship has made this question much closer than I had realized, but on balance, Trump’s order should not stand for the children of illegal aliens who are domiciled in the United States. The analysis, however, differs for the second part of Trump’s order, which applies to children of mothers on tourist or other temporary visas. And for authority, the Supreme Court can rely on an unexpected source who came up at oral argument: Justice John Marshall Harlan.

In a 1898 constitutional law lecture, which I analyzed more than a decade ago, Justice Harlan told his students that the children of tourists, “who cannot under the law become naturalized in the United States,” would not be birthright citizens. During oral argument at the Supreme Court, Justice Neil Gorsuch and counsel for the ACLU dismissed Harlan’s views because he dissented in the landmark case of United States v. Wong Kim Ark. But that decision did not set a binding precedent on the status of temporary sojourners. More importantly, the views of the Great Dissenter, whose dissents were often vindicated by history, should not be dismissed so casually. If Harlan was right, then the Supreme Court could split the difference on Trump’s order: the children of illegal aliens who intend to stay in the United States would retain birthright citizenship, but pregnant women could no longer come to the United States on temporary visas for the purpose of giving birth to citizens.

Wong Kim Ark certainly addressed the issue of birth to a tourist, but I do not think a holding was set on that question. If so, the value of Wong Kim Ark is persuasive, and not binding. Here, the Harlan dissent should warrant a closer look. After all, Harlan’s other dissents have come to be vindicated:

The Fourteenth Amendment was ratified in 1868. Wong Kim Ark, which was decided three decades later, should not be seen as a clear reflection of the original public meaning of the Fourteenth Amendment. The justices in the majority and dissent, who all lived through the ratification of the Reconstruction Amendments, vigorously disagreed on that original meaning. The value of Wong Kim Ark lies in its status as a judicial decision. Wong Kim Ark set a precedent about the status of children born to aliens who are domiciled in the United States, but there is no similar holding about temporary sojourners who do not intend to stay in the United States. 

Where there is not a binding precedent about the original meaning of the Fourteenth Amendment, I would line up behind Harlan over other members of the Court from the late nineteenth century. Consider Harlan’s track record. In 1896, the Supreme Court decided the notorious case of Plessy v. Ferguson by an 8-1 vote. The majority established the so-called “separate but equal” doctrine, which approved the Jim Crow regime. Justice Harlan was the only member who recognized that separate cannot be equal. Five members of the Wong Kim Ark majority also joined the Plessy majority. Harlan’s dissents would also be vindicated in other landmark cases. In The Civil Rights Cases (1883), Harlan recognized that Congress had the power to eradicate the vestiges of slavery. In Pollock v. Farmers’ Loan & Trust Co. (1895), Harlan found that the federal income tax was constitutional. In United States v. E.C. Knight (1895), Harlan found that Congress could regulate manufacturing as a form of commerce. In Lochner v. New York (1905), Justice Harlan upheld a law regulating bakers’ hours. And I could go on. The track record for Justice Horace Gray pales in comparison.

Very little of the briefing focused on the birth tourism issue, so Harlan’s lecture notes warrant a closer look.